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Blackstone's Criminal Practice 2006

Updates

June 2006

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Blackstone's Criminal Practice 2006

June 2006

June Updates

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

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

PART A GENERAL PRINCIPLES OF CRIMINAL LAW

A1 Actus Reus

A1.30 Causation: Acts of the Victim

In Dhaliwal [2006] EWCA Crim 1139, the Court of Appeal held that where D inflicts physical and/or psychological abuse on V and thereby causes her some kind of recognised psychiatric illness (ie injury amounting in law to actual or grievous bodily harm for the purposes of the Offences Against th Person Act 1861, s 47 or s 20) his conduct may give rise to liability for manslaughter (ie constructive manslaughter) should this illness in turn cause V to commit suicide. Conditions such as post-traumatic stress disorder, battered woman syndrome, or reactive depression were identified as potential causes. In Dhaliwal, however, the prosecution could not prove that V had suffered any such psychiatric injury. The infliction of mere psychological harm would not suffice.

The Court of Appeal left open the possibility that a manslaughter conviction might sometimes be supportable on a somewhat different basis, which had been suggested by the trial judge but disavowed by the prosecution, namely that: "where a decision to commit suicide has been triggered by a physical assault which represents the culmination of a course of abusive conduct, it would be possible . . . to argue that the final assault played a significant part in causing the victim's death".

A6 Inchoate Offences

A6.17 Conspiracy: Conditional Agreements and Contingencies

The view that contingency planning (as in O'Hadhmaill [1996] Crim LR 509) may amount to a criminal conspiracy appears to have been endorsed by the House of Lords in Saik [2006] UKHL 18; but their lordships distinguished such cases from that in which A and B agree to launder money or other property that they suspect may possibly represent the proceeds of crime. If they do not know or intend this to be the case (as is required by the Criminal Law Act 1922, s 1(2): see A6.21) they are not guilty of conspiracy, even though it may transpire that their suspicions are well founded (in which case they may end up committing a substantive money laundering offence).

A6.21 Conspiracy: Mens Rea as to Circumstances

Any lingering doubts as to the application of the Criminal Law Act 1977, s. 1(2), to cases of conspiracy to commit money laundering offences under the 'old' law (i.e. in cases not governed by the PCA 2002 (see B22)) have now been resolved by the decision of the House of Lords in Saik [2006] UKHL 18.

The House has confirmed that both Singh [2003] EWCA Crim 3712 and Sakavickas [2004] EWCA Crim 2686 were based on an interpretation of the substantive money laundering law that was later rejected by the House of Lords in Montila [2004] UKHL 50, and that neither of those cases survives the ruling in Montila.

PART B OFFENCES

B1 Homicide and Related Offences

B1.34 Constructive Manslaughter

In Dhaliwal [2006] EWCA Crim 1139, the Court of Appeal held that where D inflicts physical and/or psychological abuse on V and thereby causes her some kind of recognised psychiatric illness (ie injury amounting in law to actual or grievous bodily harm for the purposes of the Offences Against the Person Act 1861, s 47 or s 20) his conduct may give rise to liability for manslaughter (ie constructive manslaughter) should this illness in turn cause V to commit suicide. Conditions such as post-traumatic stress disorder, battered woman syndrome, or reactive depression were identified as potential causes. In Dhaliwal, however, the prosecution could not prove that V had suffered any such psychiatric injury. The infliction of mere psychological harm would not suffice.

B2 Non-fatal Offences against the Person

B2.21 Assault occasioning Actual Bodily Harm: Actus Reus

Chan-Fook [1994] 2 All ER 552 and Ireland [1997] 4 All ER 225 were considered by the Court of Appeal in Dhaliwal [2006] EWCA Crim 1139 (see A1.30).

B4 Theft, Handling Stolen Goods and Related Offences

B4.34 Meaning of Dishonesty

The question whether there can be theft when property is acquired pursuant to a contractual agreement was considered by the Privy Council in Wheatley and Penn v Commissioner of Police of the British Virgin Islands [2006] UKPC 19. The primary issue here was one of dishonesty. Founding on the dissenting opinion of Lord Hutton in Hinks [2001] 2 AC 241 at pp 255-260, the appellants submitted that, where a contract had been made and services rendered for an appropriate price, there can be no dishonest appropriation of that price when it is paid.

This argument was rejected. On the facts of the case, the appellants' conduct, which involved both non-disclosure of conflicting interests, and "wholly inappropriate and grossly misleading" billing was so bad that a finding of dishonesty was not only permissible but inevitable. Moreover, there was no dissonance between the criminal and the civil law, since the contracts made by the first appellant, contrary to his authority and with the connivance of the second appellant, were plainly voidable at the suit of the other party.

B6 Falsification, Forgery and Counterfeiting

B6.43 Offences Relating to Passports etc

As noted in last month's update, the Forgery and Counterfeiting Act 1981, s 5(5)(f) (knowingly and with intent etc having custody or control etc of false passports or documents which can be used instead of passports) and (fa) (knowingly and with intent etc having custody or control etc of false immigration documents) have been repealed (along with the accompanying definitions in s 5(9) to (11)) by the Identity Cards Act 2006, s 44 and sch 2. The repeals appear to have come into force at Royal Assent (ie on 30 March 2006). At that time, the provisions intended to supplant the repealed ones (notably ss 25 and 26 of the 2006 Act) had not yet been brought into force. Following criticism of this oversight, the Home Office has acted quickly to remedy it.

By the Identity Cards Act 2006 (Commencement No. 1) Order 2006 (SI 2006 No 1439), the following provisions were brought into force on 7 June 2006:

s 25 (possession of false identity documents etc.);
s 26 (identity documents for the purposes of s 25);
s 30 (amendments relating to offences), except for the purposes of the references to ss 27 and 28 of the Identity Cards Act 2006 in the amendment made by subsection (4) which inserts a new paragraph (q) into Article 26(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).
s 40 (orders and regulations); and
ss 1(5) to (8) (definition of registrable fact) and 42 (interpretation) so far as necessary for the interpretation of the provisions specified above.

The s 25 offence is a group A offence for jurisdiction purposes under the Criminal Justice Act 1993, part 1 (see Blackstone's Criminal Practice, A8.4).

The Order also purports to bring into force sch 2 (repeals) but this appears to contradict the wording of the Act itself, because s 44 of that Act applies as from Royal Assent and sch 2 has effect by virtue of s 44(2).

See further: Home Office Circular 15/2006

B11 Offences Affecting Public Order

B11.58 and B11.71 Harassment, Alarm or Distress

DPP v Orum [1988] 3 All ER 449 was considered by the Divisional Court in R v DPP [2006] All ER (D) 250 (May), in which the court emphasised (in the context of a prosecution under the POA 1986, s 4A) the essential difference between behaviour that was merely insulting and that which might cause or be intended to cause real emotional upset or disturbance. The court refused to accept that a police officer might have suffered (or been intended to suffer) any such emotional upset merely by being called a 'wanker' by a 12 year old boy.

B11.62 Police Powers

The nature of power given to police officers under the Anti-social Behaviour Act 2003, s 30(6) was re-examined by the Court of Appeal in R (W) v Metropolitan Police Commissioner and another [2006] EWCA Civ 458. Following the designation by senior officers of two 'dispersal areas' in the Richmond area, the applicants in this case sought:

a declaration that the Human Rights Act 1998, s 3, requires that s 30(6) should be read down so as either (1) to limit a constable's power to remove a person under 16 to cases in which the constable reasonably believes the person is himself acting or likely to act in an anti-social manner, or (2) to construe the sub-section as not giving the constable power to use reasonable force to remove the person;
a declaration that the Richmond dispersal authorisation was unlawful because it was given on a misunderstanding as to the meaning and scope of s 30(6); and an order quashing the authorisation; or
a declaration of incompatibility under the Human Rights Act 1998, s 4, in respect of s 30(6).

Reversing an earlier ruling of the Divisional Court ([2005] EWHC 1586 (Admin)) the Court of Appeal held that s 20(6) does in fact authorise, in appropriate cases, the forcible or coercive removal from an dispersal area of a person under 16. It did not however amount to a curfew provision, nor if properly exercised did the power infringe any human rights. Section 30(6) would only have a curfew effect if it gave an arbitrary power of removal; as if it gave a constable power to remove to his place of residence any unaccompanied child within a designated dispersal area at night whatever the child was doing and whatever the circumstances prevailing in the area. But the court held that the provision does not create any such arbitrary power. The power given to officers is not a power of arrest, and is designed both to protect children within a designated dispersal area at night from the physical and social risks of anti-social behaviour by others and to prevent such children from themselves participating in anti-social behaviour within a designated dispersal area at night. It did not confer an arbitrary power to remove children simply because they were in a designated area at night.

Giving the judgment of the court, May LJ cited R (Gillan and Another) v Commissioner of Police of the Metropolis [2006] UKHL 12 and said at [34]:

There are legislative constraints on the powers conferred by section 30. . . . These include the requirement to designate an area (section 30(1)(a)); that anti-social behaviour should there be a significant and persistent problem (section 30(1)(b)); that the period is limited to not more than 6 months (section 30(2)); that the constable has reasonable grounds for believing that the presence or behaviour of a group of two or more persons in a public place has resulted or is likely to result in members of the public being intimidated, harassed, alarmed or distressed (section 30(3)); that the constable's first main power is to give dispersal directions (section 30(4)); the limitations in section 30(5); the formal safeguards for authorisation (section 31(1)) and the required seniority of the relevant officer (section 36); the requirement for the consent of the local authority (section 31(2)); and the requirement for publicity (section 31(3), (4) and (5)). Specifically for the power in section 30(6), there is the constraint that the constable must have reasonable grounds for believing that a person under the age of 16 is not under the effective control of a parent or a responsible person aged 18 or over; and the requirement that, if the power under section 30(6) is exercised, a relevant local authority must be notified (section 32(4)). Further and importantly in Gillan Lord Bingham said of the relevant constraints of that case:

'Lastly, it is clear that any misuse of the power to authorise or confirm or search will expose the authorising officer, the Secretary of State or the constable, as the case may be, to corrective legal action.'

B18 Offences Involving Misuse of Computers

B18.3 Unauthorised Modification of Computer Material

'Mail bombing' attacks, in which a computer of system is slowed down or disabled by the sending of vast numbers of email messages, may amount to offences under the Computer Misuse Act 1990, s 3. Although a computer owner may consent to the sending of email messages under normal circumstances, this implied consent plainly does not extend to messages designed to disable his computer or network: DPP v Lennon [2006] EWHC 1201 (Admin).

B20 Offences Related to Drugs

B20.22 The Misuse of Drugs Regulations 2001

The Misuse of Drugs (Amendment No. 2) Regulations 2006 (SI 2006 No. 1450) make a series of amendments relating to prescription forms, record-keeping and registers based on recommendations of the Shipman Inquiry. Regulations 15, 16, 19 and 20 of, and schs. 6 and 8 to, the principal Regulations are amended.

PART C ROAD TRAFFIC OFFENCES

C5 Drink-driving Offences

C5.23 Admissibility of Specimens

The duty to 'supply' one part of a blood or urine specimen to the accused, which is imposed under the Road Traffic Offenders Act 1988, s 15(5), does not necessarily require any part of the specimen to be handed physically to the accused: it may be satisfied where in some other way that part of the specimen is made available to the accused. In R (OConnell) v DPP [2006] EWHC 1419, the appellant's arms had been broken in a motorcycle crash, and therefore his half of the divided blood specimen was handed to his friend, who fully understood its purpose. The Divisional Court saw no irregularity in this.

This commonsense decision at least avoids the need for the police to leave an incapacitated motorist lying in his hospital bed with his part of the specimen clasped safely between his teeth.

PART D PROCEDURE

D10 The Indictment

D10.2 Requirement that an Indictment be Signed

Morais [1988] 3 All ER 161 was not followed by the Court of Appeal in Clarke [2006] EWCA Crim 1196, in which it was held that the absence of the required signature on a voluntary bill of indictment did not invalidate the subsequent trial or convictions.

The court instead followed Ashton [2006] EWCA Crim 794 (noted in last month's update at D24.17), and Soneji [2005] UKHL 49, in which it was held that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised ("a procedural failure"), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue.

In Clarke, Pill LJ said:

The implications of the approach advocated in Soneji will need to be worked out in the many different circumstances in which parties rely on breaches of the rules, whether the rules appear in a statute or elsewhere. The case does, however, weaken the strict distinction between mandatory and directory requirements, consideration of which was at the heart of the decision in Morais. Whatever its implications in other circumstances, we consider that, in the present situation, we are bound by the decision of this court in Ashton, which is based on Soneji.

Applying Ashton, the proceedings are not rendered automatically invalid because the indictment had not been signed. No prejudice or consequential injustice having been identified, the convictions should stand.

D11 Arraignment and Pleas

D11.61 Plea Bargaining: Judicial Indications of Sentence

The dangers of a judge intervening to indicate that a guilty plea would avoid the risk of a custodial sentence are illustrated in A-G's Reference (No. 38 of 2006); Halford [2006] All ER (D) 211 (May), in which the Court of Appeal quashed a community penalty imposed following such a plea of guilty in a case of causing two deaths by dangerous driving and substituted a sentence of 12 months' custody in its place. Describing the judge's intervention as 'unfortunate' and the sentence as unduly lenient, the court nevertheless accepted that it increased the element of double jeopardy involved when the Attorney-General then referred the sentence to them. In ordinary circumstances, the appropriate starting point, before making allowance for the guilty plea and for the offender's youth and inexperience, would have been two and a half years.

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

D13.30 Special Measures for Vulnerable Witnesses

A number of issues raised by the granting of anonymity to prosecution witnesses fell to be considered by the Court of Appeal in Davis [2006] EWCA Crim 1155. The court ruled that the power to grant such anonymity was clearly established at common law, but this power must be exercised only with scrupulous care, given the difficulties that the granting of anonymity might pose to the defence. Properly exercised, the power to grant anonymity does not ordinarily infringe the defendant's right to a fair trial under the ECHR, Article 6; and where the power is exercised an appellate court will not ordinarily interfere. In some cases, however, the granting of anonymity, even where apparently justified at the time, may as things turn out lead to an unfair trial, and any conviction imposed in such circumstances would fall to be quashed as unsafe.

D17 Trial on Indictment: Retirement of the Jury and Verdict

D17.5 Prohibition of Further Evidence once Jury Enclosed

The general prohibition on further evidence being received after the jury has retired is not infringed where a jury which in court has been shown only parts of a videotape (of which a full transcript has also been provided) is then allowed to view the whole tape in the jury room and attempt to decipher a passage referred to in the transcript as 'inaudible'. See Edwards [2006] All ER (D) 272 (May). The Court of Appeal likened this to a case in which a bundle of photographs have been exhibited in evidence, but only a few of them have been specifically referred to in court.

D23 Anti-social Behaviour Orders

D23.5 Breach of ASBOs

In Nicholson (2006) The Times, 13 June 2006, the Court of Appeal declined to categorise the offence of breaching the terms of an ASBO (contrary to the Crime and Disorder Act 1998, s 1(10)) as one of strict liability. For the purposes of s 1(10), ignorance, forgetfulness or misunderstanding, whether arising from an error as to the terms of the order or lack of knowledge of where the defendant was at the material time, might be capable of constituting a defence of reasonable excuse. Whether such a mistake etc amounts to a reasonable excuse in a given case is a question of fact for the jury rather than a question of law for the judge.

D24 Appeal to the Court of Appeal

D24.17 Determination of Appeals against Conviction

In Ashton [2006] EWCA Crim 794, which was noted in last month's update, the Court of Appeal examined the problem of procedural failures and whether (or when) such failures should be held to render the affected proceedings (and any conviction or sentence) invalid. Following the ruling of the House of Lords in Soneji [2005] UKHL 49, it was held that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised ("a procedural failure"), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue.

Applying that approach, the Court of Appeal in Clarke [2006] EWCA Crim 1196, held that the absence of the required signature on a voluntary bill of indictment did not invalidate the subsequent trial or convictions. It appears that Morais [1988] 3 All ER 161 (see D10.2) cannot stand with Soneji or Ashton and it was not followed in Clarke, where Pill LJ said:

The implications of the approach advocated in Soneji will need to be worked out in the many different circumstances in which parties rely on breaches of the rules, whether the rules appear in a statute or elsewhere. The case does, however, weaken the strict distinction between mandatory and directory requirements, consideration of which was at the heart of the decision in Morais. Whatever its implications in other circumstances, we consider that, in the present situation, we are bound by the decision of this court in Ashton, which is based on Soneji. . . .

Applying Ashton, the proceedings are not rendered automatically invalid because the indictment had not been signed. No prejudice or consequential injustice having been identified, the convictions should stand.

D25 Procedure on Appeal to the Court of Appeal

D25.17 Power to Receive Evidence

Ahluwalia [1992] 4 All ER 889 and Borthwick [1998] Crim LR 274 were considered in Neaven [2006] EWCA Crim 955. This was a case in which a defence of diminished responsibility that would have been open to the defendant was not advanced at trial, because neither he nor his legal team had then been aware of his schizophrenia. He advanced a defence of self-defence but was convicted of murder.

Allowing this evidence on appeal, and substituting a conviction for manslaughter, with a hospital order under the Mental Health Act 1983, s 37 and a s 41 restriction, the Court of Appeal held that, although it would only be in rare cases that evidence of this kind could be adduced for the first time on appeal, in this case the defendant's illness had also affected his ability to give rational instructions, and in all the circumstances it was necessary or expedient in the interests of justice for the new evidence to be received.

PART F EVIDENCE

F7 Cross-examination

F7.12 Protection of Complainants in Proceedings for Sexual Offences

By the Youth Justice and Criminal Evidence Act 1999, s 63(1), a 'complainant', in relation to any offence (or alleged offence) to which part II of that Act applies means a person against or in relation to whom the offence was (or is alleged to have been) committed (ibid s 63(1)); but 'the complainant' for the purposes of s 41 means the alleged victim of the offence with which D is currently charged, and does not include the alleged victims of previous or subsequent offences whose evidence may be admissible to prove D's propensity under the Criminal Justice Act 2003, s 101. But although such a witness may lack direct protection under s 41, any attack on her character would be subject to the restrictions imposed by the Criminal Justice Act 2003, s 100, and where s 100 is not engaged, other general rules of evidence would apply, which would be informed by the general principles underlying s 41 of the 1999 Act. See M [2006] All ER (D) 164 (May).

F9 Public Policy and Privilege

F9.14 Privilege against Self-incrimination

In C plc and another v P (Secretary of State for the Home Office and another intervening) [2006] EWHC 1226 (Ch), Evans-Lombe J adopted a potentially revolutionary approach to the privilege against self-incrimination in light of the Human Rights Act 1998. The effect of this judgment, if followed, is to undermine the privilege insofar as it applies to pre-existing documents or items of real evidence that a party to civil proceedings is required to produce or disclose under a search order.

In this civil case, a search order was made in an action in which the company sought to sue the respondent for breach of confidence and infringement of copyright. The respondent advised the parties and the supervising solicitor appointed pursuant to the order that the respondent would rely on his privilege against self-incrimination in respect of any material which the search disclosed. The search in fact revealed large quantities of child pornography, and the question that arose was whether, in view of his claim to privilege, this material could properly be disclosed to the police.

Evans-Loombe J noted that this kind of problem could not have arisen had the material in question been seized in the course of a criminal investigation, and he regarded this difference as anomalous. The privilege was on the face of it supported by extensive authority (including the decision of the House of Lords in AT & T Istel v Tully [1993] AC 45), that would ordinarily have been binding upon him, but the learned judge took the view that the enactment of the Human Rights Act 1998 enabled him to depart from those precedents and reject the privilege, so as to permit the disclosure of the incriminating evidence to the police.

This seems, with respect, a particularly bold approach, given the recent ruling of the House of Lords in Price v Leeds City Council [2006] UKHL 10, in which Lord Bingham said (at [43] - [44]:

. . . Certainty is best achieved by adhering, even in the Convention context, to our rules of precedent. It will of course be the duty of judges to review Convention arguments addressed to them, and if they consider a binding precedent to be, or possibly to be, inconsistent with Strasbourg authority, they may express their views and give leave to appeal, as the Court of Appeal did here. Leap-frog appeals may be appropriate. In this way, in my opinion, they discharge their duty under the 1998 Act. But they should follow the binding precedent, as again the Court of Appeal did here.

There is a more fundamental reason for adhering to our Domestic rule. The effective implementation of the Convention depends on constructive collaboration between the Strasbourg court and the national courts of member states. The Strasbourg court authoritatively expounds the interpretation of the rights embodied in the Convention and its protocols, as it must if the Convention is to be uniformly understood by all member states. But in its decisions on particular cases the Strasbourg court accords a margin of appreciation, often generous, to the decisions of national authorities and attaches much importance to the peculiar facts of the case. Thus it is for national authorities, including national courts particularly, to decide in the first instance how the principles expounded in Strasbourg should be applied in the special context of national legislation, law, practice and social and other conditions. It is by the decisions of national courts that the Domestic standard must be initially set, and to those decisions the ordinary rules of precedent should apply.

Lord Bingham did nevertheless recognize that exceptional cases might arise in which Convention principles could justify a departure from precedent. In D v East Berkshire Community NHS Trust [2004] QB 558, for example, the Court of Appeal held that the decision of the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 was no longer binding on them, because the Human Rights Act 1998 had undermined the policy consideration that largely dictated the House of Lords decision.

Evans-Lombe J considered the instant case to be exceptional in this sense, because the public's right under Articles 2, 3 and 8 of the Convention to be protected from the effect of criminal activity, when balanced against the respondent's privilege, required the court to modify the respondent's right so as to enable the material to be so transferred; and in none of the earlier cases that would otherwise have been binding on him had the Convention point been taken.

The idea that a person's individual Convention rights must be balanced against wider public interest considerations is not of course new, but here it is remarkable that a well established right to claim privilege is being removed in the wider public interest, so that criminal behaviour can be detected and punished.

A first instance ruling is most unlikely to represent the last word on this issue. Indeed, when making the order for disclosure of the material to the police, the learned judge gave the respondent permission to appeal and stayed the order pending the 'reasonably urgent' prosecution of any such appeal. We must therefore await further developments.

F12 Character Evidence: Bad Character of Accused

F12.6 Notice

As to the need for proper observance of time limits imposed by the Criminal Procedure Rules, and the difficulties that may be caused by late applications to admit evidence of a defendant's bad character, see M [2006] All ER (D) 164 (May).

F12.21 Risk of Collusion between Witnesses

In Card [2006] EWCA Crim 1079, the Court of Appeal has for the first time given detailed consideration to the scope and effect of the Criminal Justice Act 2003, s 107. This provision was touched upon, briefly and obiter, in Renda [2005] EWCA Crim 2826 at [27], but has not previously been central to the outcome of any reported case. Card now provides detailed guidance as to the proper handling of s 107 issues, but this guidance appears to be undermined by confusion as to what evidence must be 'contaminated' before s 107 can apply.

The wording of the provision makes it clear that it is applicable only to cases in which the 'contaminated evidence' is evidence of bad character as defined in s 98 of the Act (ie evidence of misconduct other than evidence which has to do with the offence with which the defendant is charged or evidence of misconduct in connection with the investigation or prosecution of that offence). It is not applicable to cases in which uncontaminated evidence of bad character has been adduced in support of other prosecution evidence which is then found to be contaminated. If, for example, the complainant alleges that the defendant assaulted her, and evidence of his previous convictions for similar assaults is adduced under s 101(1)(d) to demonstrate his propensity to commit such assaults, s 107 is not engaged merely because evidence later emerges to show that the complainant changed her evidence after colluding with another prosecution witness. There is a danger in such cases that a court or jury will still convict the defendant because of his criminal record, but this is not a danger that s 107 purports to address.

On the other hand, s 107 is capable of applying in cases where D is charged with two or more allegedly similar or related offences, in which the evidence on one count has been presented as corroborative (or mutually supportive) of the other[s], but has then been found to be contaminated. This is because s 112(2) provides:

Where a defendant is charged with two or more offences in the same criminal proceedings, this Chapter (except section 101(3)) has effect as if each offence were charged in separate proceedings; and references to the offence with which the defendant is charged are to be read accordingly.

In other words, evidence relating to count 1 may be 'evidence of bad character' as far as count 2 is concerned (and vice-versa). If such evidence is contaminated, s 107 may then apply.

In Card, this essential distinction between contaminated evidence of bad character and contaminated evidence supported by uncontaminated evidence of bad character appears to have been overlooked. The purpose of s 107, said the court, was to safeguard the position of the defendant whose "bad character" had been put in evidence, by requiring the judge to stop the trial if "evidence in support of the prosecution" proves to have been contaminated. On that basis it was assumed that s 107 applied in a case where the only evidence identified by the court as 'evidence of bad character' (ie D's criminal record) was entirely free of contamination, and where the alleged contamination took the form of evidence that the two child complainants had been coached in their evidence (and told what to say) by their mother. Judge P said:

The duty under section 107 does not arise unless the judge is satisfied that there has been important contamination of the evidence. If he is so satisfied, what then follows is not a matter of discretion. The consequences are prescribed by statute. Whether or not there would on the conventional approach be a case to answer, the trial should be stopped. The jury must either acquit the defendant in accordance with a judicial direction, or if the judge considers that the case ought to proceed to a re-trial, the jury will be discharged from returning a verdict and a retrial ordered. . . .

In our judgment there was plain and unequivocal evidence that [the first complainant] M's evidence was different from what it would otherwise have been as a result of the conversations with her mother. The inference that [the second complainant] A's evidence was different from what it would otherwise have been if he had not been present during the same conversation as his sister, in our judgment, was virtually inescapable. The excluding provisions in section 107 were established. The jury should have been discharged.

The court did not refer to s 112(2), either expressly or by implication. Although the evidence of what was allegedly done to one complainant may have been bad character evidence when used to support the allegation made by the other complainant, the court does not recognise this, but instead purports to draw a distinction between witness testimony on the one hand and 'bad character evidence' on the other:

In future, we suggest that when, in answer to a submission by the Crown at the start of the trial that the defendant's previous bad character should be admitted before the jury, counsel for the defendant (as here) makes a responsible submission that there is material in the prosecution case itself to suggest that there was or may have been witness contamination, it would normally be sensible for the judge to postpone a decision until the suggested contaminated evidence has been examined at trial. If the decision to admit bad character evidence were postponed until the evidence of the complainants and any other witnesses were concluded, the judge, when deciding whether to admit the evidence of bad character, would have well in mind the precise details of the evidence actually given, with such weaknesses and problems as may have emerged. He would not then be acting on his judgment about anticipated evidence, but making a decision based on the evidence itself.

The judgment in Card is thus flawed and the guidance provided should be reconsidered when the opportunity arises.

F16 Exceptions to the Rule against Hearsay

F16.48 Criminal Justice Act 2003: Multiple Hearsay

The Criminal Justice Act 2003, s 121(1)(c) was relied upon in Maher v DPP [2006] EWHC 1271 (Admin), in which, following a collision, evidence of the defendant's car registration number had been provided to the victim by a member of the public, and then passed on to the police by the victim's girlfriend and recorded by the police officer in question in the relevant incident log. The log was thus based on multiple hearsay. Although at trial the justices had purported to rely upon s 117 of the Act, the element of multiple hearsay in fact precluded reliance on that section (see s 117(2)(c)). At this point s 121(1)(c) became crucial, and the Divisional Court concluded that it was clearly in the interests of justice for the evidence to be admitted.

NEW LEGISLATION

Identity Cards Act 2006 (Commencement No. 1) Order 2006 (SI 2006 No. 1439)

This Order brings into force on 7 June 2006 ss. 25, 26, 30 (subject to exceptions) and 40 and sch. 2 (but see B6.43 above) as well as ss 1(5) to (8) and 42 so far as necessary for the interpretation of the first-mentioned sections.

Misuse of Drugs (Amendment No. 2) Regulations 2006 (SI 2006 No. 1450)

These Regulations make a series of amendments relating to prescription forms, record-keeping and registers based on recommendations of the Shipman Inquiry. Regulations 15, 16, 19 and 20 of, and schs. 6 and 8 to, the principal Regulations are amended.

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