Oxford University Press
  Home About Us Contact Us Help Jobs News Site Index OUP Worldwide
Search:
Advanced Search
Email this to a Friend Printer-Friendly View
Academic, Professional, & General
Blackstone's Criminal Practice 2006
Updates
Latest Developments
You are here: Home > Academic, Professional, & General > Blackstone's Criminal Practice 2006 > Updates > Latest Developments

Companion Website

Blackstone's Criminal Practice 2006

Latest Developments

Latest Developments

September 2006

B10.145 Control Orders and the ECHR

In Re MB [2006] EWHC 1000 (Admin), Sullivan J examined the procedures established by the Prevention of Terrorism Act 2005, s. 3, relating to the supervision by the High Court of control orders made by the Home Secretary under s. 2 of that Act. He held the s. 3 procedure to be 'conspicuously unfair' and incompatible with the right to a fair hearing that is guaranteed under the ECHR, Article 6(1). A declaration to that effect was made pursuant to the Human Rights Act 1998, s. 4.

This ruling was reversed by the Court of Appeal (Civil Division) in Secretary of State for the Home Department v MB [2006] EWCA Civ 1140. When read in conjunction with the Prevention of Terrorism Act 2005, s. 11(2) (which was overlooked at first instance) the provisions for review by a court of the making of a non-derogating control order by the Secretary of State did indeed comply with the requirements of Article 6(1).

By way of contrast, the Court of Appeal in Secretary of State for the Home Department v JJ [2006] EWCA Civ 1141 upheld Sullivan J's ruling in In Re JJ (control orders) [2006] EWHC 1623 (Admin). This case concerned the content of orders imposed under s. 2 on asylum seekers who had been detained on national security grounds. The orders required the suspects to be confined for 18 hours per day in designated domestic residences, which would be subject to random searches at any time. They would be electronically tagged, and allowed only limited and controlled contact with other persons.

Sullivan J ruled that the cumulative impact of these orders were such as to deprive the persons in question of their liberty, contrary to the ECHR, Article 5(1). He also ruled that it was appropriate for him to quash the orders by virtue of s. 3(12) of the Act. The Court of Appeal agreed. Lord Phillips CJ concluded (at [27)):

We consider that the reasons given by Sullivan J for quashing the orders are compelling. There is a further reason. Paragraph 8 of the Schedule to the PTA gives the Secretary of State power, should he decide, in the absence of a derogation order, to make new control orders under section 2 to replace those that Sullivan J quashed. If the Secretary of State decides to exercise this power, he will have to devise a new package of obligations imposing controls on the respondents. This is an exercise that the Secretary of State is very much better placed to perform than the court.

Author: MH

September 2006

B12.12 Imitation Firearms

In K v DPP [2006] EWHC 2183 (Admin), an assault was committed by the appellant, who pointed a plastic 'BB' (ball bearing) gun at the complainant and threatened to shoot him in the face. For this, he was convicted of possessing an imitation firearm with intent to cause fear of violence, contrary to the Firearms Act 1968, s. 16A, and his conviction was upheld on appeal.

The BB gun used by the appellant was essentially a plastic toy that fired plastic pellets at a much lower velocity than any air gun, but it was modelled on a real firearm and could under some circumstances have been mistaken for one. Clearly, therefore, this gun, or any other realistic toy gun, could in some circumstances become an imitation firearm. In K v DPP, however, everyone involved in the incident knew (and knew that everyone else knew) it was not a real weapon. The incident arose because the complainant was attempting to enforce a rule prohibiting the possession of BB guns in the hostel at which the appellant resided, and the appellant objected to giving his up.

The question for the court was whether a firearms offence (in this case an offence of) could be committed when there was no attempt or intent to imitate a firearm and no real possibility of mistake or confusion on the part of the victim or of any bystander. Its answer was that the justices who tried the case were entitled to examine the toy in court and conclude (as a matter of fact) that in appearance it resembled a real gun. Once they had so concluded, conviction was inevitable. The character of the object could not change merely because everyone knew at the time what it really was. That was merely something to be taken into account when sentencing.

The answer to this question must surely have been different had the court adopted a modern, purposive construction of the legislation. The clear purpose of the law governing misuse of imitation firearms is to prevent criminals intimidating victims, police officers or bystanders by pretending that these are real weapons. As Lord Bingham noted in Bentham [2005] UKHL 18:

While an imitation firearm lacks the capacity of a real, loaded firearm to kill or injure, it has much the same capacity to frighten and enforce compliance, not least because many imitations are almost indistinguishable from the real thing and those threatened have little opportunity or inclination to examine the nature of the weapon used: see R v Avis and others [1998] 1 Cr App R 420, 423. . .

Purposive construction of the legislation relating to imitation firearms had a notoriously 'bad press' in Bentham, but this was because the Court of Appeal's purposive approach in that case led them to conclude that B had been 'in possession' of an imitation firearm in the form of his own finger, which he had pointed from under an anorak, so as to resemble the barrel of a gun. For this it was roundly criticised by academic commentators and reversed by the House of Lords, who held that Parliament had not created any offence of merely pretending to possess a firearm. The offence charged was one of possessing an imitation firearm, but one cannot 'possess' one's own finger. The rules of statutory construction, said Lord Bingham:

have a valuable role when the meaning of a statutory provision is doubtful, but none where, as here, the meaning is plain. Purposive construction cannot be relied on to create an offence which Parliament has not created.

With respect, however, this need not have precluded the adoption of a purposive construction in respect of issues where some ambiguity does exist; and in K v DPP there was indeed room for different interpretations. The appearance of the relevant object at the time of the offence is what matters, but it lies in the eye of the beholder, and it appeared to everyone concerned that it was a toy. To put it another way, the fact that the object in question superficially resembled a firearm was, for all practical purposes, irrelevant at that time. If instead the appellant had brandished a toy catapult, or threatened to hit the complainant with a plastic cricket bat, his conduct would essentially have been similar, and no less threatening.

It follows that the charge brought under s 16A was wholly inappropriate on the facts of K v DPP, in which a charge of common assault would surely have sufficed.

Author: MH

September 2006

B20.22 The Misuse of Drugs Regulations 2001

The Misuse of Drugs (Amendment No. 3) Regulations 2006 (SI 2006 No. 2178) amend the Misuse of Drugs Regulations 2001 to correct defects in the amendments made by the Misuse of Drugs (Amendment No. 2) Regulations 2006 (SI 2006 No. 1450). The (Amendment No. 2) Regulations omitted to exclude veterinary prescriptions from the additional requirements it imposed; the (Amendment No. 3) correct that omission.

Author: MH

4 October 2006

D1.1; D1.12; D1.39 Police Powers and Investigation of Crime: Necessary Arrest and Search Warrants

R(C) v Chief Constable of A [2006] EWHC 2352 (Admin) holds that, while it may be possible for the court to intervene to shut down a continuing investigation because there is no basis to suggest that a prosecution will ever come about, such relief would be appropriate only in the most exceptional cases (if at all). It is, furthermore, unclear what the appropriate relief would be. On the facts no relief should be granted in this case. The Divisional Court also deals with points of construction arising from the relevant legislation.

In brief, this case concerned a police investigation into downloaded pornography. The police applied for and executed a search warrant at the claimant's home. There were reasonable grounds for the issue of the warrant and to suspect the claimant. He was arrested and interviewed in connection with the matter and released on police bail until seven months in the future. No indecent images were found on the computers seized, but other relevant material was. Special procedure material was found on one seized computer and returned to the claimant. The claimant argued that his credit card data on the Landslide system (an American company involved in distributing pornography) was identity theft. In the alternative, the claimant's son who had access to the claimant's credit card was the more likely suspect. The claimant sought relief that the highly embarrassing investigation against him should be terminated.

In the course of reaching its conclusion not to grant relief, the Court noted the following points:

  1. it is important that the form of information and the warrant itself be properly completed and it is wise to state that the magistrate has been satisfied of the matters of which he is required to be satisfied;
  2. the police were not in this case, and are not in all cases, obliged to make all such enquiries as would be required to test the possibility of identity theft: the police are not obliged to delay an investigative search until after they have investigated, and if possible excluded, the possibility that someone other than the claimant might be responsible for the putative offence;
  3. in this case the magistrate was justified in accepting the police assertion that no special procedure material was to be found on the computers to be seized given that the search was to take place at the claimant's home and the suspected offences had nothing to do with his business activities - there was nothing to put the magistrate on inquiry;
  4. the issue of the search warrant was the act of the magistrate and, even had the police had no proper basis for what they told the magistrate, the warrant would not have been vitiated;
  5. the alternative in the Police and Criminal Evidence Act 1984, s. 8(3)(d) was not specified as a ground relied on in the information but the magistrate must have concluded that the purpose of a search might be frustrated or seriously prejudiced unless a constable arriving at the premises could secure immediate entry - the fact that the claimant is apparently respectable does not mean that the risk of his attempting to thwart the investigation can be discounted;
  6. the arrest of the claimant was lawful - the fact that there was reason to suspect another person at the premises did not, in the circumstances of this case, require the conclusion that there were no reasonable grounds to suspect the claimant;
    7. >
  7. the purpose of the arrest was to take the claimant to a police station for an immediate interview under caution - while the word 'necessary' in the Police and Criminal Evidence Act 1984, s. 24(4) may be more rigorous than that which formerly applied, the Court will review the matter applying Wednesbury principles and while a Court on judicial review may, if satisfied that the evidence is clear and reasonably complete, hold that an arrest is unreasonable (because the person would attend voluntarily for interview) such was not the case here - nor would such a ruling halt the investigation

Author: LL

September 2006

D1.6 Power to Stop and Search

The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) Order 2006 (SI 2006 No. 2165) brings into operation, on 31 August 2006, a revision of para. 4 of Code A (exercise of statutory powers of stop and search and requirements to record public encounters). The revision pertains to the recording requirements enables constables of the British Transport Police operating from certain specified locations to provide an electronic receipt rather than a full record when they undertake a stop or a stop and search. A full record will be made available to the person at a later time. In consequence of the revision, the applicable Notes for Guidance are revised and a new Annex D (use of an electronic receipt as an interim record of a stop or stop and search) is inserted.

Author: MH

September 2006

D2.64 Abuse of Process: Power to Stay Proceedings

In SL [2006] EWCA Crim 1902, the Court of Appeal held that it is neither an abuse of process nor unreasonable for the Crown to bring criminal proceedings against a parent for the death of a child where the family court, in care proceedings relating to another child of the family, has not attributed blame to one parent as against the other. A child, Ethan, was found dead in circumstances which precluded attribution of death to natural causes. In care proceedings relating to a surviving child, Jamie, Hedley J did not find that either the father or the mother was responsible for the death of the child. There was, however, evidence that pointed to the father as the parent responsible. The Crown brought proceedings against him and he was convicted of manslaughter. At trial before Beatson J, it was argued that it was an abuse of process for the criminal trial to take place or, in the alternative, unreasonable for such proceedings to be brought having regard to the decision in the care proceedings. The appellant argued that his conviction for manslaughter was inconsistent with the conclusion of Hedley J that he could not say, in the care proceedings, whether Ethan's death was homicide or if it was that it was the appellant, rather than his partner, who was responsible and that this inconsistency was an affront to public justice.

The Court of Appeal, following a careful review of the authorities, concluded that Beatson J had been correct to allow the prosecution to proceed. The decision in the care proceedings was not and could not be a final determination of the criminal proceedings. It could not give rise to double jeopardy or issue estoppel. Even had Hedley J invited the Crown to attend the care proceedings as an interested party and had said (as he did not) that he intended his decision finally to decide the outcome of all proceedings involving the appellant, such observations would not bind the criminal court. The Crown was entitled not to accept Hedley J's reservations as to whether Ethan's death was a homicide and, having reflected on Hedley J's judgment and the public interest test for prosecution, to bring proceedings for manslaughter. The ultimate responsibility for bringing criminal proceedings lies on the Crown. Its decision to do so could not amount to an affront to public justice. The Court did state however (at [64]) that the Crown may be required by the trial judge to provide an explanation of its decision to bring proceedings.

The Court went on to address the desirability of avoiding problems arising from contemporaneous civil and criminal proceedings in respect of the same matter. The Court states (at [73]):

We emphasise however, that because procedural and evidential difficulties can arise when there are in existence parallel care proceedings in respect of a child and criminal proceedings against a person connected with that child in respect of a serious offence against the child (or any person connected with the child), it is essential that there should be close liaison between the local Social Services Authority conducting the care proceedings and the Crown Prosecution Service. Wherever possible, linked criminal and care directions hearings should take place as the cases progress.

Author: LL

21 September 2006

D5.4 The Decision to Issue a Summons - private prosecution

R (Charlson) v Guildford Magistrates' Court & Ors [2006] EWHC 2318 (Admin) considers what the role of magistrates should be when considering an application for a summons for private prosecution in circumstances where the CPS had already brought and discontinued proceedings for the same matter. The claimant's three-year-old son was struck and killed on a pelican crossing by a car allegedly driven by the interested party. The CPS issued a summons against the interested party for driving without due care and attention. The coroner declined to make any findings of fact as to the state of the crossing at the time of the incident and refused to decide any issue of criminal liability. The CPS then discontinued proceedings. Solicitors for the claimant then laid an information and applied for a summons to Guildford Magistrates' Court. In brief, Guildford Magistrates' Court refused to issue a summons, and South-West Magistrates' Court withdrew a summons which it had issued.

The Court holds that the following principles apply to the issue of a summons in circumstances where the CPS has discontinued proceedings. First, private prosecutors are not bound to apply the Code for Crown Prosecutors when deciding whether to issue proceedings, nor do the courts apply the evidential sufficiency test. A private prosecution does not have to satisfy either of these tests. Secondly, there is no rule that when the CPS has already laid an information in respect of the same matter the issue of a summons will be issued only where there is apparent bad faith on the part of the private prosecutor. Tower Bridge Magistrates' Court, ex parte Chaudry [1994] QB 340, which has been taken to state the contrary, is distinguishable as a case of potentially concurrent prosecutions in which case it would be oppressive for the defendant to face two prosecutions). In those circumstances the magistrates should be slow to issue a summons on behalf of the private prosecutor unless there was apparent bad faith on the part of the CPS. It may be suggested that such a case could arise where the CPS proposed to bring charges which were much less severe than the facts in issue apparently warranted.

In a case where the CPS has brought and discontinued proceedings, the magistrates should ascertain that the offence to be charged is known to the law, whether the ingredients of the offence are prima facie present, that the issue of a summons is not time-barred, that the court has jurisdiction, that the informant has the necessary authority to prosecute and any other relevant facts. Where the CPS has already brought a prosecution which is still proceeding, the magistrate should be slow, in the absence of special circumstances, to issue a summons for a private prosecution. To this one should add that where the proposed defendant has been cautioned in terms that he would not be prosecuted for the offence if he agreed to be cautioned, no summons should issue (Jones v Whalley [2006] UKHL 41).

In the event, the decisions in the two magistrates' courts were quashed. Passages in Stone's Justices Manual 2005, para. 1422 (the same passage appears in the 2006 edition) and in Archbold 2006, at para. 1-259 should not be relied on.

Click here for the full text of the judgment.

Author: LL

September 2006

D6.44 General Discretionary Requirements Imposable

Home Office Circular 25/2006 provides detailed advice about the procedures that will be followed when courts decide that an adult defendant should be subject to electronic monitoring, or 'tagging' whilst on bail. Tagging is available as a condition of bail in support of a curfew condition. It states 'The intention of the Home Secretary in making tagging more available is that it should be used as an alternative to remand in custody.' Its implementation date is 1 September 2006.

Author: MH

29 September 2006

D11.42 Double jeopardy-retrial provisions

D [2006] EWCA Crim 1354, sub nom Dunlop (2006) The Times, 14 September 2006 is the first reported case under the retrial provisions of part 10 of the Criminal Justice Act 2003. In brief, Dunlop was tried twice for the murder of Julie Hogg. The jury was unable to agree on both occasions. Subsequently, Dunlop confessed his guilt in a document relating to care proceedings in respect of his daughter, to others including a prison officer, and ultimately pleaded guilty to a charge that he had perjured himself at his trial. Following the enactment of part 10 of the Criminal Justice Act 2003, the Crown applied to charge him with the murder of Julie Hogg.

In allowing the application the Court held as follows, in response to the defendant's arguments:

  1. Using accepted techniques of jury management, it should be possible to select a jury that is not prejudiced by such publicity. In any event, by virtue of the Police and Criminal Evidence Act 1984, s. 74(3), the defendant would, given his conviction of perjury, be taken to have committed that offence unless the contrary be proved. On a retrial the jury would proceed on the premise that he committed perjury when he denied being guilty of the murder of Julie Hogg unless the contrary be proved. Any recollection that any member of the jury had about publicity would pale into insignificance in comparison to the legitimate prejudicial effect of Dunlop's admissions that he had killed Julie Hogg.
  2. Delay here had no special quality so as to make it unfair to try Dunlop for the murder.
  3. The fact that when Dunlop made admissions he could not have been tried for murder does not preclude his now being charged with the offence. Even without the conviction for perjury, a formidable case could have been mounted against him on the basis of statements made to persons other than police officers, for example a nurse who had looked after him in hospital, and the incriminating statement which he made in proceedings under the Children Act relating to his daughter. When he made his statements, Dunlop knew that the double jeopardy rule might be altered because he was aware of the consultation paper on the topic, and he made his statements because he wanted psychiatric help so he was not induced to make his statements by the police because he had been told that he could not be retried for murder: Kirk [2001] 1 Cr App R 400 distinguished. The Court did however approach the case on the footing that, had Dunlop known that he might be retried, he might not have provided the confessions which were the new and compelling evidence justifying his retrial.
  4. Even though Dunlop served a sentence for perjury, the public would be outraged were he not to be retried for the murder. The sentence imposed for the perjury can be taken in to account when assessing the minimum term for the murder. There is therefore no injustice in allowing a retrial in this case.

On 12 September 2006 Dunlop pleaded guilty to the murder of Julie Hogg.

Click here for full text of the judgment

Author: LL

11 September 2006

D11.64 Change of plea-guilty to not guilty

Revitt and Others v DPP [2006] EWHC 2266 (Admin) restates familiar propositions relating to the court's discretion to allow an accused person to change his guilty plea. The defendants, who were seen to have driven their motorcycles at undue speed, pleaded guilty to dangerous driving and to other motoring offences, namely driving without a valid licence, driving without insurance, and driving a vehicle without a valid test certificate. The defendants were unrepresented when they entered their guilty pleas. They were informed by the court of the nature of the charge (which they agreed that they understood), declined an offer of advance disclosure, were informed that the charges were serious and that for them to be legally advised was desirable, and finally that the charges were serious and could merit a custodial sentence. The magistrates retired to consider sentence. Solicitors by now acting for the defendants then sought unsuccessfully to withdraw their guilty pleas and again unsuccessfully renewed their application when the defendants came up for sentence some days later, contending that the defendants thought that they were pleading guilty to public nuisance.

On appeal, the defendants contended that the practice followed in relation to guilty pleas is incompatible with the ECHR, Article 6 and, further, that they did not receive a fair trial.

The Court held that the guilty plea procedure, given the safeguards which surround it (including the court's discretion to allow a change of plea), is consistent with Article 6. The discretion to withdraw an informed and unequivocal plea of guilty should be exercised having regard to whether there is concern whether a guilty plea was intended or really ought to have been made. Here, the defendants fully appreciated the nature of the charge. Their pleas of guilty to other motoring offences rendered incredible the assertion that they intended to plead guilty to nuisance. This was not a case in which the material facts did not amount to the offence charged. Accordingly, the magistrates acted within their discretion in refusing to allow a change of plea. S v Recorder of Manchester [1971] AC 481; South Tameside Magistrates' Court, ex parte Rowland [1983] 3 All ER 689 (per Glidewell J at p 692) and Bournemouth JJ, ex parte Maguire [1997] COD 21 applied.

Click here for the full text of the judgment.

Author: LL

September 2006

D23.1 Intervention Orders

The Drugs Act 2005 (Commencement No. 4) Order 2006 (SI 2006 No. 2136) brings s. 20 of the Act into force on 1 October 2006. Section 20 inserts new sections into the Crime and Disorder Act 1998. Section 1G of the 1998 creates the power to make intervention orders and s. 1H supplements that power. Intervention orders are orders which may be made at the same time as a court makes an ASBO in respect of a person aged over 18, following a report and consultation with prescribed persons. An intervention order requires the defendant to comply with requirements and directions. Intervention orders are declared to be designed to address anti-social behaviour stemming from drug use by providing forms of activities and treatment to ease the defendant's drug dependency.

The Crime and Disorder Act 1998 (Intervention Orders) Order 2006 (SI 2006 No. 2138) prescribes the persons to be consulted before applying for an intervention order, namely the National Health Service Trust, Primary Care Trust, National Health Service Foundation Trust or, where it is not itself the applicant for the associated ASBO, the local authority concerned with the provision of appropriate activities within the area in which it appears that the defendant resides or will reside (art. 2). Article 3 prescribes the person responsible for the provision or supervision of 'appropriate activities' (namely a trust or authority referred to in art. 2 which provides or supervises, or arranges for the provision or supervision of, such activities). Article 4 prescribes those activities and who constitutes an 'appropriately qualified person' to compile a report for the purposes of such an application.

Author: MH

September 2006

D23.4 Relevant Authority

The Crime and Disorder Act 1998 (Relevant Authorities and Relevant Persons) Order 2006 (SI 2006 No. 2137) specifies the Environment Agency and Transport for London as 'relevant authorities' for the purposes of the Crime and Disorder Act 1998, ss. 1, 1B, 1CA and 1E. Where a person has acted in an anti-social manner on or in relation to land in respect of which the Environment Agency has a statutory function, it may apply for the purpose of protecting persons who are (or are likely to be) on or in the vicinity of such land. Transport for London's powers are limited to action relating to its land or vehicles or those of a subsidiary operator.

Author: MH

6 September 2006

D24.6 Deciding Outcome of Appeal and Giving Judgment

In Coates [2004] 1 WLR 3043, [2004] EWCA Crim 2253, the Court of Appeal held that, notwithstanding that a decision on an appeal had been reached by all three judges, the appeal could not be said to be determined if the decision was not binding on the judges themselves. This was in the context of a reserved judgment, the result of which had been agreed by all the judges but not embodied in a written judgment to which all members of the court had agreed. The same case deals with the situation where the court gave its decision in open court but announced that reasons would be given later. Here, the court was bound and reasons might be produced by two members. In Steele [2006] EWCA Crim 2000, (2006) The Times, 5 September 2006, the Court holds that a decision is final, within the meaning of the Supreme Court Act 1981, s. 55, when the draft judgment is released to counsel, notwithstanding that one member of the court was not present on that occasion. A decision is properly to be regarded as binding on the judges themselves when all three judges indicated their approval of the draft and authorised its release to counsel. Accordingly, the Court lacked jurisdiction to receive further submissions on the merits of the case.

Click here for the full text of the judgment.

Author: LL

12 September 2006

D24.17 Compromising appeal

In Owens [2006] EWCA Crim 2206 the Court of Appeal disapproved a deal the effect of which would have been to compromise an appeal by two brothers charged with two counts of conspiracy, the first of fraudulent evasion of excise duty which involved laundering red diesel and the second of money laundering. Prosecution counsel agreed not to oppose an appeal on the second charge provided that the first charge and the sentences imposed in respect of it were not challenged. In a stinging rebuke, the Court states that an agreement by counsel not to oppose an appeal must have a logical or intellectual basis. The matter must be fully opened to the Court. A compromise which amounts to no more than a deal is unacceptable: it shows a fundamental misunderstanding of the function of the Court in determining appeals within the Criminal Appeal Act 1968, s. 2, namely, to allow an appeal against conviction if it considers the conviction to be unsafe and otherwise to dismiss the appeal.

Click here for the full text of the judgment.

Author: LL

September 2006

E1.7 Reduction in Sentence for Assistance by Offender

The Serious Organised Crime and Police Act 2005 (Appeals under Section 74) Order 2006 (SI 2006 No. 2135) makes provision corresponding to provision in the Criminal Appeal Act 1968, with modifications, for the purposes of appeals in England and Wales under the Serious Organised Crime and Police Act 2005, s. 74(8). Part 2 of the Order relates to appeals to the Court of Appeal in relation to England and Wales and Part 3 allows, and makes provision in relation to, appeals to the House of Lords from the Court of Appeal in relation to England and Wales. Article 4 makes provision for the powers of the Court of Appeal on appeal. If the Court of Appeal determine to allow the appeal and if they think fit, they can vary the sentence imposed by the Crown Court.

1 September 2006

E5.9 Imprisonment for Public Protection: Assessment of Dangerousness

In Majid Ali Manir [2006] All ER (D) 132 (August) a sentence for public protection with a minimum period of 18 months was upheld on a defendant who, having taken drink, committed a serious sexual assault (which, had it not been interrupted, might have become rape) on a young woman to whom he and another had been speaking. The defendant was on licence for a driving offence. He had a previous conviction for robbery in which he had used a screwdriver as a weapon. While the defendant did not suffer from a recognised psychiatric illness, a pre-sentence report noted that he had a high degree of culpability and pre-meditation. He posed a high risk of re-offending and committing serious harm. The defendant submitted that, in the light of his early guilty plea, the fact that he had no previous history of sexual offending, and the fact that the victim had not in fact suffered serious harm, a determinate sentence of three years' imprisonment would have been appropriate.

Sexual assault is a specified offence under the CJA 2003, s. 224 and sch. 15, part 2, para. 104. There was evidence before the trial judge to indicate that there was a high risk that the defendant would commit further serious offences and that he might cause serious physical or psychological harm to his victim. The judge was entitled to make an assessment of dangerousness on the material before him and the Court of Appeal would not interfere with his finding.

The Court followed Lang et al [2006] 2 All ER 410, [2005] EWCA Crim 2864, which decides that the seriousness of an offence (under s. 225(2)(b)) relates both to the offence and to the dangerousness or culpability of the offender. It is clear from this case (and indeed from Lang at paras. [7] and 17]) that the relevant risk is one of serious re-offending and is not restricted to a risk of re-offending in the same way. It would seem that the element of violence involved both in the instant case and the prior robbery is the most significant indicator of dangerousness (taken with the defendant's culpability and pre-meditation).

Author: LL

September 2006

E21.15 Reconsideration

Gokal v Serious Fraud Office [2001] EWCA Civ 368 was followed in Re McKinsley [2006] EWHC Civ 1092. This case was decided under the Drug Trafficking Act 1994, s. 17, but will apply also to the Proceeds of Crime Act 2002, s. 23. The court held that, on an application for a certificate of inadequacy, the court is concerned only with the current state of the defendant's assets. It is not concerned with whether an error had been made as to the amount of the confiscation order. A defendant who considers that such an error was made has a statutory right of appeal. If the defendant is out of time, the Court of Appeal (Criminal Division) will consider the application to extend time and the leave application on their merits. If there has been an appeal the defendant may apply to the Criminal Cases Review Commission to refer the matter to the Court. The Administrative Court has no jurisdiction in certificate of inadequacy proceedings to go behind the basis of the confiscation order even if there was a manifest error, or there is fresh material to be considered, and an attempt to do so was an abuse of the process of the court. The same preclusive rule will apply under the 2002 Act in respect of applications to the Crown Court.

Author: LL

September 2006

F1.9 Relevance

By the Police and Criminal Evidence Act 1984, s. 74(1), the fact that a person other than the accused has been convicted of an offence by a UK court is admissible for the purpose of proving, where this is relevant to any issue in the proceedings, that he committed that offence. A statement made by a person who has since died (including an admission of criminal liability) may meanwhile be admissible under the Criminal Justice Act 2003, ss. 114 and 116, to prove any fact which he could have proved through oral testimony (although, in contrast to the PACE, s. 74, there is no presumption that such a statement is true). These provisions do not, however, determine when such evidence is relevant in the first place, and it is clear from Tinsley [2006] EWCA Crim 2006 that the concept of relevance must still be applied quite strictly.

The appellant in Tinsley was charged with sexual offences against his niece, who had also complained of similar abuse allegedly committed by her grandfather and step-grandfather. Her grandfather died shortly after admitting his guilt to the police. Her step-grandfather pleaded guilty to indecent assault. The fact that the complainant had already been twice vindicated must significantly have boosted her credibility in the eyes of a jury, but relevance to a collateral issue such as witness credibility is something distinct from relevance to an issue in the proceedings. The Court of Appeal accordingly ruled that none of this collateral evidence was admissible. Latham LJ said (at [12]-[13]):

The general principle is that for evidence to be admissible as relevant, it must be logically probative (or disprobative) of a fact in issue between the parties. The question is therefore, what was it that the Crown intended to prove by putting this material before the jury? . . . There was no suggestion that the appellant was involved together with either the grandfather or the step-grandfather . . . It follows that the only purpose for which the material could have been put before the jury was to establish that because she had told the truth in relation to [them], the jury could be satisfied that she was telling the truth in relation to the complainant. But the mere fact that the complainant has told the truth on other occasions, even if in the same context, cannot be logically probative of the facts that she alleges in relation to the appellant. Whilst it is tempting to say that it is relevant in the sense that the complainant's credit was 'in issue' that, in our judgment, cannot open the door to evidence being called simply in order to support the argument that the witness is a credible witness. It is, in effect, a form of 'oath helping', which has never been permissible as a ground for admitting evidence.

The Court did not rule out the possibility that the evidence might have been admissible as explanatory evidence under s. 100 of the 2003 Act but, since no application for leave to admit under that section had been made at trial, it was not prepared to deal with the issue.

Author: MH

13 September 2006

F12.2, F12.4, F12.23 Bad Character: Statutory Gateways

Malone [2006] EWCA Crim 1860 is interesting on the interaction of ss. 98(a) and 101(1)(d) of the Criminal Justice Act 2003.It is also interesting on the contemporary attitude of the Court of Appeal which is to strive for substantial justice rather than to give weight to technical points.

The appellant was convicted of the murder of his wife on the basis of a strong circumstantial case. The defendant's marriage had previously resulted in separation. A reconciliation had broken down. The victim disappeared and the appellant fled to Spain. The victim's body was not discovered until some time later.

A document was admitted in evidence. This purported to be a report from an enquiry agent alleging that the victim had visited places, pubs and clubs, and not places where she had told the defendant she was going. It ended with a testimonial to the defendant's good character. This report was shown to be a forgery. It was admitted in evidence pursuant to s. 98(a) as evidence of bad character to do with the alleged facts of the offence. The Court concluded that the evidence was capable of characterisation within the terms of s. 98(a). Evidence of the appellant's matrimonial difficulties, their intensity, and how he dealt with them could have been admissible as going directly to show, together with other circumstantial evidence, that he had committed the offence. As such it was capable of being evidence 'to do with the alleged facts of the case' in the same way as evidence of a joint venture or a conspiracy would have been admissible.

The evidence was not put at trial in this way. Nonetheless, the Court upheld the conviction as safe. The evidence could have been admitted under s. 101(1)(d). That was in fact the way the evidence was used by the prosecution at trial, as tending to show that the appellant was laying a false trail and this was relevant to an important matter in issue between the defence and prosecution. To the contention that the judge had not considered whether the evidence ought to be admitted in the light of s. 101(3), the Court replied that admissibility had been considered under the Police and Criminal Evidence Act, s. 78 in connection with the s. 98 application and that the provisions of the two sections are similar and require similar considerations.. It was not unfair for the evidence to be admitted.

Although no prior notice was given at trial of intention to admit evidence under s. 101(1)(d), under the CrimPR notice could have been given orally and the time abridged. Under the circumstances the Court concluded that non-compliance with CrimPR, part 35 was not an insuperable obstacle to the evidence being adduced under s. 101(1)(d). The Court concludes in effect that the failure to give notice did not render the conviction unsafe. This must follow from the fact that the evidence was in fact used as though it had been admitted under s. 101(1)(d) and the question of admissibility canvassed under s. 78 of PACE.

The judge's directions, while not as full as they might have been, were adequate. The jury was adequately directed that the evidence was admitted to show that the appellant had not been truthful after the victim's disappearance and that his conduct after that event was a charade. Accordingly, the conviction was upheld.

Author: LL

September 2006

F12.6 Notice

A court or judge has a discretion to admit evidence of a defendant's bad character despite the lack of notice pursuant to CrimPR, r. 35.8 by permitting the notice to be given orally and shortening the time in which it can be given: see Lawson [2006] All ER (D) 116 (Aug).

Author: MH

September 2006

F12.15 Identifying the Accused by Evidence of Bad Character under the Criminal Justice Act 2003, s. 101(1)(d)

Isechei [2006] EWCA Crim 1815 provides a somewhat unusual example of the use of bad character evidence to help identify the accused as the perpetrator of an offence. It was unusual because the evidence was not used to suggest that the accused had any propensity to commit offences of that type.

Two female students were assaulted and robbed by two men they had previously met in a club. One of the men had allegedly referred to some missing cocaine prior to robbing them. The appellant was visually identified by one of the victims and CCTV images from the crime scene showed a man resembling him. This identification evidence was supported, according to the prosecution, by the appellant's unusual first name (Marvin) which the girls had previously heard used in relation to one of the robbers, and by his previous conviction for importing cocaine.

The trial judge ruled that it was relevant that the defendant was connected to cocaine, when cocaine was the motive for these offences, but that the previous conviction did not establish any propensity or disposition to commit robbery. The Court of Appeal agreed. Auld LJ said (at [32]):

In our view, and paying all due allowance to the complexities introduced into this area of law by the 2003 Act, this was not a direction as to propensity -- quite the reverse. It was expressly a direction as to identification through the medium of a connecting factor so as to place Isichei in a discrete category of person interested in cocaine, so as to tie it to the girls' evidence as to the mention of cocaine by one of their assailants. However you look at it, the connecting factor is one in which the prosecution sought to find a way to support the evidence of identification: not a propensity to commit robbery or assault.

Author: MH

September 2006

F12.25 Criminal Justice Act 2003: Evidence of Bad Character Going to Matter in Issue between Co-accused

Lawson [2006] All ER (D) 116 (Aug) was a case in which the appellant and his co-accused had run cut-throat defences implicating each other in the manslaughter of a mentally handicapped victim. According to the summary report (no full transcript being yet available), the prosecution sought at the end of the appellant's evidence in chief to adduce evidence of his previous conviction for wounding; and this was ruled admissible under the Criminal Justice Act 2003, s. 101(1)(e). This must surely be a reporting error, because the prosecution are not permitted to invoke s. 101(1)(e). Only the co-accused could lawfully have done so. The judge directed the jury that evidence of this conviction was relevant only to the appellant's credibility as a witness, and was not directly relevant to his guilt.

On appeal, it was submitted that the conviction lacked any substantial probative value regarding an important matter in issue between the defendants; and had created irreparable prejudice to the appellant.

The Court of Appeal rejected this argument. The appellant's evidence tended to undermine the co-accused's defence and, given its relevance, the judge had had no discretion to exclude the evidence of his bad character.

Author: MH

September 2006

F14.6 Threshold Conditions for Admissibility

There was a time when a prosecution witness whose truthfulness was challenged would expect to be cross-examined on any previous convictions he might have for offences of dishonesty. Following Hanson [2005] EWCA Crim 824, however, the courts now seem to hold that previous convictions, whether of a defendant or of a witness, and whether for offences of dishonesty or otherwise, are relevant to that defendant's or witness's credibility only where, in the earlier case, either there was a plea of not guilty and he gave an account (on arrest, in interview or in evidence) which the jury must have disbelieved, or where the way in which the offence was committed shows a 'propensity for untruthfulness', e.g., by the making of false representations.

S [2006] All ER (D) 120 (Aug) follows this new orthodoxy. The Court of Appeal approved of the fact that the jury which convicted the appellant of serious sexual offences was told nothing of the complainant's convictions for various offences of dishonesty. Now these convictions were old and relatively minor, and may have lacked any great relevance in this particular case, but is it really right to proceed on the basis that a many-times-convicted thief, burglar or handler is less likely to lie on oath than a convicted fraudster, and no more likely to do so than a citizen of unblemished character? Really?

Author: MH

September 2006

F15.11 Implied Statements as Hearsay

The definition of hearsay provided by the Criminal Justice Act 2003, s. 115, has quickly caused difficulties for the courts, particularly in the context of 'implied assertions'. See for example Singh [2006] EWCA Crim 660 and David Ormerod's commentary on that case at [2006] Crim LR 647.

In Isechei [2006] EWCA Crim 1815 (see F12.15 above) one of the pieces of evidence used to identify the appellant as one of the robbers was the fact that the victims recalled another person referring to that person as 'Marvin', which was the appellant's first name and not a common one. The defence argued that the prosecution's reliance on this evidence infringed the rule against hearsay, but the trial judge accepted the Crown's argument that the evidence did not fall within the definition of hearsay in s. 115(2) and (3) because it was not a representation of fact or opinion and it was not made in order to cause any other person to believe the matter, or to act upon the basis that the matter was as stated.

The Court of Appeal declined to decide the issue one way or the other, and relied instead on the fact that s. 114(1)(d) would enable such evidence to be admitted at the judge's discretion even if it were found to be hearsay. Auld LJ said (at [41]):

In our view, the judge may have been wrong in concluding that it was not a statement within section 115(3) and so governed by the Act. That would require a semantically correct and somewhat highly artificial application of the provision in this context in an analysis to what was essentially an inconsequential part of the story so far as the speaker on the telephone at the time was concerned. It is common sense that it is a possible inference that he spoke to Marvin, or someone whom he knew who was at the club, leading, as a result of the conversation, for them all to go there. But even if the man on the telephone had not, in the words of section 115(3)(a), had the purpose of causing the others in the cab to know that he was talking to Marvin, the evidence, if that were the case, would be, if anything, more probative than otherwise. Why should he care, if the story was true, what the others believed as to the truth of the person to whom he was talking or as to what was being said. Their only interest at the time was whether as a result of the telephone call they would be able to find another club to go to which was open. Whatever the position, it seems to us that the evidence about that was clearly admissible in the interests of justice under section 114(1)(d) as part of the story of a common sense series of events, the one leading from the other.

Author: MH

September 2006

F19.4 Failure to Reveal Facts Afterwards Relied upon in Court

What approach should the Court of Appeal adopt when the CLRC refer to them cases in which trial judges gave directions concerning the drawing of inferences under the Criminal Justice and Public Order Act 1994, s. 34, that were considered adequate at the time, but which (in light of the ECHR's ruling in Condron v UK (2001) 31 EHRR and later decisions of the Court of Appeal) would now be considered to fall well short of the minimum requirements?

The crucial importance of a full and careful direction in s. 34 cases is something that the Court has repeatedly emphasised (notably in Joseph [2004] EWCA Crim 1616. Where there is any real doubt as to whether the jury would still have convicted, if given such a direction, it is clear that any conviction based on an inadequate one is liable to be quashed: see for example Beckles [2004] EWCA Crim 2766. But this does not mean that a retrospectively inadequate s 34 direction must inevitably undermine the safety of a conviction. The issue and authorities were examined at some length in Boyle [2006] EWCA Crim 2101, in which it was concluded that:

an absolutist approach, particularly to a reference, is not called for. Each case depends on its own circumstances. The essential question is whether any misdirection identified has caused an injustice and whether the Court of Appeal is satisfied that the verdict was safe. In reaching a decision as to the safety of the verdict it may assist to analyse first how the case was left to the jury by virtue of the direction given and then second to analyse how it would have been left to the jury if a proper direction had been given. The court should then assess whether, having regard to the jury's verdict on the direction as given, the jury would have been bound to convict if a proper direction had been given. Only, of course, if the court is sure that the jury would have been bound to convict can the verdict be said to be safe.

Author: MH

September 2006

Appendix 2 PACE Codes of Practice

The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) Order 2006 (SI 2006 No. 2165) brings into operation, on 31 August 2006, a revision of para. 4 of Code A (exercise of statutory powers of stop and search and requirements to record public encounters). The revision pertains to the recording requirements enables constables of the British Transport Police operating from certain specified locations to provide an electronic receipt rather than a full record when they undertake a stop or a stop and search. A full record will be made available to the person at a later time. In consequence of the revision, the applicable Notes for Guidance are revised and a new Annex D (use of an electronic receipt as an interim record of a stop or stop and search) is inserted.

Author: MH

^ Return to the top

    About this book
    Price, bibliographic details, and more information on the book

    About Us | Contact Us | Help | Jobs | News | Site Index | OUP Worldwide Email this to a Friend | Printer-Friendly View | Accessibility
    Copyright © 2012 Oxford University Press | Privacy Policy | Legal Notice