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Companion Website
Blackstone's Criminal Practice 2006
March 2006
March 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 E: Sentencing
- Part F: Evidence
- New Legislation
PART A GENERAL PRINCIPLES OF CRIMINAL LAW
A8 Territorial and Extraterritorial Jurisdiction
A8.11 'Foreign' Offences Triable in England
One might suppose that where a British citizen uses lethal violence against a robber or burglar in a foreign or Commonwealth country, the legality of such violence should be judged exclusively according to local law, which may for example permit the killing of intruders, without qualification. But as Cheong [2006] All ER (D) 385 (Feb) (27 February 2006, CA) demonstrates, that is not necessarily the case. In 1983 the appellant, who was then living in Guyana, shot and killed a man who had just robbed his wife and sister-in-law. Under local law he was charged only with the unlicensed possession of a firearm; but as a British citizen he faced a murder charge in England many years later (brought under the Offences Against the Person Act 1861, s. 9) and a conviction for manslaughter was upheld on appeal.
PART B OFFENCES
B9 Offences Affecting Security
B9.88 Unlawful Interception of Communications
The extent of the defence provided under the Regulation of Investigatory Powers Act 2000, s. 1(6), was examined in Stanford [2006] EWCA Crim 258. The appellant in this case was charged, inter alia, with the unlawful interception of electronic mail communications to a public company, contrary to s. 1(2) of the Act. He had been deputy chairman of the company. After his resignation, he was found to have intercepted electronic mail communications to and from certain persons in that company. His defence was that the interceptions had been made at his request by the company's computer system administrator (X), who it was argued was excluded from criminal liability because X was a person who had a right to control the operation or use of the system (s. 1 (6)(a)) or [alternatively] because X had the express or implied consent of such a person to make the interception (s. 1(6)(b)).
Rejecting this argument, the Court of Appeal held that to 'control' in the context of s. 1(6) meant to 'authorise and forbid'. It did not cover X's mere ability physically to use and operate the system. The objective of s. 1 of the Act was to protect the privacy of private communications. It would undermine the object of that section if anyone with unrestricted ability to operate and use a telecommunications system were exempt from criminal liability for intercepting communications.
B22 Offences Relating to the Proceeds of Criminal Conduct
B22.3 Money Laundering and Criminal Property
Gabriel [2006] EWCA Crim 229 provides important guidance as to the meaning of the term, 'criminal property', which is itself of central importance in relation to the money-laundering offences under the Proceeds of Crime Act 2002, ss. 327, 328 and 329 and related provisions.
The Court of Appeal rejected the argument that profits made from trading in legitimate goods, without declaring the profits to the Inland Revenue or (in the case of benefit claimants) to the Department of Work and Pensions, could in any circumstances convert the profits into criminal property. Gage LJ said:
"We recognise that the failure to declare profits for the purposes of income tax may give rise to an offence, but that does not make the legitimate trading in goods an offence of itself . . .
We can see how benefits obtained on the basis of a false declaration or a failure to disclose a change in circumstances may amount to obtaining a pecuniary advantage, namely the benefits: see s 340(6) of the Act. But in this case no attempt was made to prove that the appellant or anyone else in her family had made any false declaration or failed to disclose a change of circumstances."
This view seems both right in principle and consistent with Loizou and others [2005] EWCA 1579, in which Clarke LJ said (in the context of an alleged offence of transferring criminal property, contrary to s. 327(1) of the Act:
"In our view, the natural meaning of s 327(1) . . . is that the property concealed, disguised, converted or transferred, as the case may be, must be criminal property at the time it is concealed, disguised, converted or transferred (as the case may be). Put the other way round, in a case of transfer, if the property is not criminal property at the time of the transfer, the offence is not committed."
B22.14 Offences of Acquisition, Use or Possession
In Gabriel [2006] EWCA Crim 229, Gage LJ offered this advice to prosecutors in cases involving the Proceeds of Crime Act 2002, s. 329:
"There can be no doubt that the money laundering provisions of the Proceeds of Crime Act 2002 are draconian. The scope of s 329 is wide. It requires proof of no more mens rea than suspicion. The danger is that juries will be tempted to think that it is for the defence to prove innocence rather than the prosecution to prove guilt. In Loizou and Others [2005] EWCA 1579 the prosecution had set out the factors upon which it relied and from which it submitted the jury could draw proper inferences. In our judgment it is a sensible practice for the prosecution, as was done in Loizou, either by giving particulars, or at least in opening, to set out the facts upon which it relies and the inferences which it will invite the jury to draw as proof that the property was criminal property. In doing so it may very well be that the prosecution will be able to limit the scope of the criminal conduct alleged.
B23 Immigration Offences
B23.26 Trafficking for Sexual Exploitation: Sentencing
Maka [2005] EWCA Crim 3365 (see the December 2005 update) was distinguished in Ramaj [2006] All ER (D) 242 (Feb), in which a sentence of five years for trafficking was held to be sufficient in a case where the complainant had willingly chosen to work as a prostitute (or where at least the contrary had not been proved to the jury's satisfaction).
PART C ROAD TRAFFIC OFFENCES
C2 Evidence and Procedure in Road Traffic Cases
C2.10 Admissibility of Evidence from Prescribed Devices
The Road Traffic Offenders Act 1988, s. 20(8) specifies certain notice requirements that must be satisfied if a certificate is to be tendered in evidence for the purpose of proving a speeding offence; but this does not preclude such evidence being called in the conventional manner.
As the Divisional Court explained in DPP v Thornley [2006] EWHC 312 (Admin), the usual effect of s. 20(1) and (8) is that evidence of a fact relevant to the proceedings may be adduced by the record produced by a prescribed device, and a certificate as to the circumstances in which it was produced must be served on the person charged not less than 7 days before the hearing or trial. If a copy of the record and the certificate is served not less than 7 days before trial, and if not less than 3 days before trial, or such further period as the court may allow, the person charged serves on the prosecution a notice requiring the attendance at the hearing of the person who signed the certificate; the document, or documents if the record and certificate are in separate documents, will not be admissible as evidence of anything other than the matters shown on the record produced by the prescribed device. In those circumstances, the officer will be able to give evidence of the circumstances in which the record was produced and the record itself will be admissible in evidence. The officer need not have first-hand knowledge of the speeding offence, as long as he is aware of the circumstances in which the speed camera etc was set up. But if the officer is prepared to testify in this way, compliance with s. 20(8) is not necessary.
This may seem to deprive motorists of their right to see, in advance of the trial, the photographs or digital images that form the crux of the case against them, but in Thornley (at [18]) Owen J offered some reassurance in that respect:
"In his submissions to us, Mr Thornley sought to argue that if we were to uphold this appeal then that would have the consequence that where the prosecution do not comply with the provisions of s 20(8) and serve a copy of the record more than 7 days before the hearing, defendants will not have the opportunity to subject the record to analysis, and will therefore be inhibited in the conduct of their defence. The answer to that is that if the prosecution fail to comply with s 20, and if a defendant is, as a result, at a disadvantage and needs additional time within which to consider the record produced by the machine, or have it subjected to scientific examination, he will be entitled to ask the court for an adjournment. I would expect that in those circumstances an adjournment would be granted. He would also be in a position to seek an order for the costs thrown away. Again, it is likely, absent any other relevant considerations, that such an application would be successful."
C3 Offences Relating to Driving Triable on Indictment
C3.9 Dangerous Driving and Causing Death by Dangerous Driving
In the widely publicised case of DPP v Milton [2006] EWHC 242 (Admin) the Divisional Court (in a judgment given by Hallett LJ) allowed the prosecution's appeal against a district judge's ruling that the respondent, a class 1 police driver, was guilty neither of speeding nor of dangerous driving when he 'familiarised himself' with a powerful new unmarked police car at speeds of up to 149 mph on the M54 and at 91 mph on restricted urban roads with a 30 mph limit.
The court did not go so far as to remit the case with a direction to convict, but merely required it to be reheard on the basis that the district judge had misdirected himself on certain matters and had taken some irrelevant matters into account. The outcome of the rehearing is by no means a foregone conclusion, however.
Police officers are subject to the same rules of driving as the rest of the population, save that under the Road Traffic Regulation Act 1988, s. 87, a police vehicle may be driven in excess of speed limits "if their observance would be likely to hinder the use of that vehicle for the purpose for which it is being used on that occasion". If a police officer drives dangerously in an emergency he is not exempt from liability under the Road Traffic Act 1988, ss. 1 or 2 (Collins [1997] RTR 439) and for that reason the court rejected the prosecution's primary argument, which was that driving at very high speeds must inevitably amount to dangerous driving. As Hallett LJ explained:"That would mean that any driver of an emergency vehicle, driving at twice the speed limit, whatever the road conditions, however much warning was given to other road users, would be guilty of dangerous driving. That cannot be right."
But although the prosecution failed on this point, other questions remained to be answered. Is an officer using a vehicle on police purposes (so as to be exempt under s. 87 from the duty to comply with speed limits) when practising his skills or familiarizing himself with a new car? And did the district judge apply the right principles and take account of the right factors when deciding that the respondent's driving (in which no lights or sirens were used to warn other road users) was not 'dangerous' within the meaning of the Act?
As to the first question, the court's view was that this question arose for consideration only if and when the district judge acquitted the respondent on the principal charge of dangerous driving, and therefore no final answer was forthcoming, but it did at least reject the prosecution's argument that a police officer who drives at such high speeds could only come within the exemption when in hot pursuit of a dangerous criminal. In contrast, the court doubted whether a blanket answer could properly be given in favour of the defence. Hallett LJ said:
"Familiarising oneself with a vehicle and honing one's skills does not necessarily involve driving at 90 miles per hour through residential streets, if that is what they were. Nor does it necessarily involve driving at 150 miles per hour."
As to the second and (on the facts) more important question, the court recognized that the test for dangerous driving is said to be a wholly objective one (in the sense that it makes no difference if D is unaware of the danger posed by his driving); but s. 2A requires account to be taken of 'any circumstances shown to have been within the knowledge of the accused'. This personal knowledge test would ordinarily be used against, for example, the driver who knows of but ignores a dangerous concealed junction ahead, or the limitations of his vehicle; but in this case the district judge had applied it in favour of the respondent, by taking into account the respondent's knowledge of his own professional driving skills.
The court held that this was impermissible. In so far as the district judge imported a subjective element into the test of dangerous driving to be applied, he was wrong in law to do so. To quote Hallett LJ again:
"It matters not whether the respondent intended to drive dangerously, or believed that he could drive at grossly excessive speeds without causing danger to others because of his advanced driving skills. I repeat that the test is, what is the standard judged objectively and what would have been obvious to the independent bystander? As to whether the district judge would have been entitled to impute knowledge of the respondent's driving skills to the independent bystander on the basis of the arguments advanced before us, I can form no concluded view."
With respect, this is a crucial question that deserves a forthright answer; and the answer must surely be the respondent's skill was a highly relevant consideration which any reasonable bystander must be required to take into account. If I were offered a 150 mph ride (on a private race track) I would want to know who the driver was and what experience he had. Knowing a top professional driver was at the wheel, I would probably accept the offer. If my young nephew were to make me a similar offer a few weeks after passing his test, I would consider it to be absurdly dangerous.
But even if the above argument is accepted, the respondent's decision to 'practise' at 90 mph in a built-up area may still be open to attack. Driving at these speeds on public roads without blue lights or sirens, however skilled the driver, amounts, said Hallett LJ, to a prima facie case of dangerous driving. The district judge ought to have taken into account the possible effect upon other road users of somebody coming up behind them or across their path at speeds of this kind and with no warning; and he was wrong to hear expert evidence as to why the respondent's driving was not dangerous. As to why expert evidence on that point was inadmissible, the court regrettably gave no reasons, but one matter upon which the judge might well have benefited from expert guidance concerns the nature of advanced driver training, in which drivers learn how to anticipate and guard against such events, so that innocent road users are not so easily surprised or endangered. This, with respect, is not a matter of general public knowledge.
Hallett J concluded her judgment with the following observations:
"I am conscious of the need to ensure that police officers are properly trained for their own safety and for the safety of the public. In my view, if the position is as found by the district judge here there should be a better way. I would invite the Chief Constable of West Mercia Constabulary, and any other Chief Constable whose force may be affected, to instigate a review, if they have not already done so, as to whether or not the situation is as the district judge found here. I would ask them to consider whether advanced police drivers are encouraged to hone their skills in unfamiliar vehicles at grossly excessive speeds on public roads both urban and motorway."
The answer, with respect, is that advanced police drivers must indeed practise at least some of their high speed skills on public roads. If this kind of practice is stopped we will end up with traffic officers who are relatively inexperienced (or at least too often out of practice) when driving at very high speeds. But whether it is right for them to be required to practise without using lights and sirens to warn other road users is perhaps another matter.
C3.33 Causing Danger to Road Users
The offence created by the Road Traffic Act 1988, s. 22A(1)(a) was considered by the Divisional Court in DPP v D [2006] EWHC 314 (Admin), in which it was held that the placing of an item on a road may be dangerous even if a careful and competent motorist would see it in good time. In this case the defendant had moved a 3' x 4' road sign onto the carriageway of a main road (apparently as some kind of prank). That night, a speeding car swerved suddenly off the road just before reaching the sign and both occupants were killed. There was evidence that a vigilant motorist travelling in that direction would easily have seen the sign, and the district judge ruled that there was no case to answer under s. 22A(1).
Allowing a prosecution appeal against this ruling, the Divisional Court noted that the back of the sign would not so easily have been visible to a motorist overtaking from the opposite direction, but based its ruling on the wider basis that not all road users drive carefully. David Clarke J said:
"17 The reasonable person does not expect, and cannot be taken to expect, that all motorists will drive carefully and well. The reasonable person is aware, sadly, that many motorists do not. The reasonable person should, in my judgment, realise that an obstruction of this sort could play a part in causing an accident, notwithstanding that the primary cause of such accident would be bad driving on the part of a motorist, whether in the form of excessive speed or failure to keep a proper lookout or following other traffic too closely or a combination of such factors. I would hold that the District Judge should not have dismissed the case prematurely on this ground.
18. He approached the question as being one of whether it would be obvious to a reasonable and prudent driver, who drives at the correct speed, that the presence and the position of the sign was dangerous; that is to say, whether it would be dangerous to him. No doubt, he had in mind the evidence of the witnesses in this case, to whom it did not present a danger and who said they had not been endangered by it. But, in my judgment, that was not the right approach. The question is whether a reasonable bystander would consider it to represent an obvious danger, whether that reasonable bystander be a motorist or not. The reasonable bystander would, in my judgment, be fully aware of the fact that not all drivers do drive carefully and well."
PART D PROCEDURE
D9 Sending Cases from the Magistrates' Court to the Crown Court
D9.3 Sending Cases to the Crown Court under the Crime and Disorder Act, s 51
In R (Bentham) v Governor of HM Prison Wandsworth [2006] EWHC 121 (Admin) the Divisional Court were required to consider whether a notice of transfer complied with the requirements of the Crime and Disorder Act 1998, s. 51(7) (now s. 51D(1)) where it stated in the box provided for "Offences":
"Conspiracy (both defs); Supply drugs x 3; Drive disq (Herridge)"
The court held that despite its evident lack of precision, the notice (which was in fact supplemented by (but not cross-referenced to) other documentation including a copy of the charge sheet and a memorandum of an entry in the register of the magistrates' court, detailing the offences) remained valid. There was no prescribed form for the content of such a notice, and no provision was made in the Act for dealing with defective notices.
Gross J nevertheless made these observations (at [42]) as to good practice when drafting such notices:
"(i) Here, I wish to say nothing to increase the paper burden on magistrates' courts and their clerks; nor do I wish to be unduly prescriptive; moreover, as is apparent, nothing like the detail contained in the second Notice is required.
(ii) That said, as a matter of good practice, I cannot avoid observing that the drafting of the Notice was altogether too exiguous.
(iii) Accordingly, it does not seem to me that it would be unduly burdensome to require a s 51(7) notice, as a matter of good practice, either (a) to summarise the offence(s) in a more careful form than was here the case or (b) to cross-refer to documents to be sent to the Crown Court, such as the charge sheet (if unamended) or, perhaps preferably, the Memorandum of an Entry entered in the Register of the magistrates' court.
(iv) The effort of doing so would undoubtedly be time well spent. As Laws LJ observed in McGrath (supra), while defects in s 51(7) notices may well not invalidate the prior sending, deficiencies in such notices may give rise to due process arguments or (as demonstrated in the present case) at least to the unnecessary incurring of time and costs in resolving the matter."
D11 Arraignment and Pleas
D11.42 Retrial Provisions of the Criminal Justice Act 2003
In Re D (acquitted person: retrial) (2006) The Times, 6 March 2006, the Court of Appeal has for the first time examined its new power to quash an acquittal for a qualifying offence and order a retrial, together with related matters such as the court's power to restrict publication of the proceedings in question.
Further consideration of this case must await availability of a transcript of the judgment.
D12 Juries
D12.21 Prejudice-discharge of jury
In Azam and others [2006] EWCA Crim 161, the Court of Appeal considered when the trial judge should discharge the jury, in a case where the principal Crown witness proved to be difficult, aggressive, assertive and at times uncontrollable and asserted that the defendants were gangsters. The Court enunciated the following propositions:
- As an integral part of his duty to ensure that a jury trial is fair, the judge retains, and where necessary should exercise, his discretionary power to discharge the jury.
- The judge may exercise this power whichever side invites him to do so. He may also act of his own motion and even when both sides assert that he should not.
- If there are real grounds for doubting the ability of the jury to bring an objective judgment to bear on the issues the jury should be discharged (adapting Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at p. 480).
- The question whether the jury may be biased or apparently biased requires a balanced judgment of the things said to create the risk of bias in the jury while simultaneously taking account of the directions available to be given by the judge to extinguish the risk. The ultimate question is fact or case specific in the context of the trial process as a whole.
- The Court of Appeal will interfere with decisions made by the trial judge concerning the conduct of the case only if the Court is satisfied that they were wrong.
In this case (an attempted murder by shooting), had the jury been discharged, there would have had to have been a second trial. It could not be said that the witness would have behaved better. The wild assertions of the witness could be countered by a specific and unequivocal direction to the jury. This was in fact done. The appeal was therefore dismissed on this and other grounds.
D18 Trial on Indictment: Sentencing Procedure
D18.34 Pronouncement of Sentence
In Barber [2006] EWCA Crim 162 Swift J said:
"36. We would respectfully remind judges of the requirements of the Criminal Justice Act 2003 s 174 and of the importance of explaining in clear and unambiguous terms the effects of a custodial sentence, including the length of time that the offender will serve in custody and the length of time for which he will remain on licence after his release. Furthermore, we would remind counsel of their obligation to remind the court, where necessary, of the requirements of s 174."
D23 Anti-social Behaviour Orders
D23.5 Application Procedure
Note the Practice Direction (Magistrates' Courts) Anti-social Behaviour Orders: Composition of Benches issued by Sir Igor Judge P [2006] 1 All ER 886, by which:
- Where there is an application to a magistrates' court for an anti-social behaviour order under the Crime and Disorder Act 1998, s 1, or an application to a magistrates' court for an anti-social behaviour order to be varied or discharged under s 1(8), and the person against whom the order is sought is under 18, the justices constituting the court should normally be qualified to sit in the youth court.
- Applications for interim orders under s 1D of the Act, including those made without notice, may be listed before justices who are not so qualified.
- If it is not practicable to constitute a bench in accordance with para [1], in particular where to do so would result in a delayed hearing, this direction does not apply.
D23.7 ASBOS Following Conviction in Criminal Proceedings
As to the circumstances in which it may be proper for a heavier sentence to be imposed for breach of an ASBO than could be imposed for an offence by means of which the ASBO was breached, see Stevens (2006) The Times, 24 February 2006, in which a sentence of nine months' imprisonment was imposed (and upheld on appeal) for breach of an ASBO relating to drunkenness in public.
Williams [2005] All ER (D) 03 (Oct), Kirby [2005] EWCA Crim 1228 and Boness [2005] EWCA Crim 2395 were each distinguished.D24 Appeal to the Court of Appeal
D24.13 Appeal against Conviction Following a Plea of Guilty
Brown (John Lewis) [2006] EWCA Crim 141 affords a further example of the Court of Appeal's willingness, in exceptional cases, to allow an appeal notwithstanding the defendant's guilty plea. This was a case, referred to the Court by the Criminal Cases Review Commission, arising from the activities of the notorious West Midlands Serious Crime Squad. In brief the defendant, charged with the robbery of a post office, signed an incriminating statement which, he alleged, was the result of improper pressure. The defendant was threatened that his status as an informer would be exposed unless he made a confession. This status was, at the time the statement was made, not known to his family and associates though it became known, by the time the plea was entered, as a result of erroneous disclosures by the prosecution. The appellant asked for but was denied the services of a solicitor and, by means of a false record, the police sought to conceal that fact.
Apart from his guilty plea, the evidence against the appellant was either inconclusive or fatally tainted. Had matters the subject of concessions on appeal by the prosecution been known to the prosecution at the time of trial, they would have been disclosed. The prosecution would have offered no evidence against other defendants charged with the appellant. Had the matters emerged in the aftermath of the appellant's plea, the prosecution would not have opposed any application to change plea and would thereafter have offered no evidence. Had the appellant fought the case and been convicted in the absence of the disclosures above referred to, there would have been no argument open to the Crown to support the conviction.
In the light of the above concessions, the Court concluded that there existed in this case very exceptional circumstances where, despite his plea of guilty, the appellant's conviction should be quashed. These, it would seem, though the Court does not particularise them, relate both to duress and to abuse of process, the grounds upon which the CCRC referred the matter to the Court.
D25 Procedure on Appeal to the Court of Appeal
D25.19 Approach of the Court of Appeal to 'Evidence' Appeals
Pendleton [2001] UKHL 66 was considered by the Court of Appeal in Steele and others [2006] EWCA Crim 195, in which evidence had come to light since the trial which showed a key prosecution witness had been in contact with (and had received payment from) media sources prior to the trial.
It is obvious, said the Court, that contacts and contracts between a witness and media interests in advance of a trial have a potential to engender injustice, especially when they are unknown to the defence at the time of trial and cannot be used in cross-examination of the witness. But it did not follow that the convictions in this case were unsafe. The witness was known to be a person of bad character and the jury were fully aware of that. The essentials of his account had been imparted to police officers in interview and reduced to witness statements before he had any dealings with members of the media. If the jury had known about the media contacts then, although such contacts are to be deprecated, it was difficult to see how they could have added significantly to the cross-examination armoury in the circumstances of this case.
PART E SENTENCING
E2 Custodial Sentences
E2.7 Crediting of Periods of Remand in Custody
The scope and effect of the Criminal Justice Act 2003, s. 240, was examined by the Court of Appeal in Barber [2006] EWCA Crim 162. Giving the judgment of the court, Swift J said:
"26. The present case gives us an opportunity to remind judges of their obligations under s 240, to which attention was drawn previously by this Court in the case of Oosthuizen [2005] EWCA Crim 1978. Judges should state the information required under the section clearly and unambiguously so that everyone present can readily understand it. If a judge intends that the period spent in custody on remand should count as part of the sentence, he should state that fact, together with the information required under s 240(5), in open court. If a judge decides not to give a direction under s 240(3) or to give a limited direction, he should say so and he should give reasons for his decision. However, obligations in connection with s 240 do not apply to judges alone. It is the duty of counsel, both prosecution and defence, to be alert to the requirements of the section, to bring the provisions of the section to the attention of the judge when it appears that he may have overlooked them and to seek immediate clarification of any ambiguities that may arise in the course of the judge's sentencing remarks. Prosecuting counsel should be particularly vigilant in this regard."
In Oosthuizen, Rose LJ said:
"24. In future, if, in an appropriate case, the judge fails to give a direction as required by s 240 (3), counsel for the prosecution, or the defence, should raise the matter with the Crown Court judge within 28 days, seeking a variation of the order under s 155 of the Powers of Criminal Courts (Sentencing) Act 2000. Even outside the 28 day period, it may be arguable that the Crown Court has such jurisdiction (see Saville 70 Cr App R 204) though, having heard no argument on the point, we express no concluded view. Non-direction, under s 240(3) will not, usually, be a ground of appeal to this Court, where the sentence passed in the Crown Court is otherwise appropriate."
The Criminal Justice Act 2003, s. 240(3), does not apply in relation to a day for which an offender was remanded in custody:
"(a) if on that day he was serving a sentence of imprisonment (and it was not a day on which he was on licence under Chapter 6 of Part 12 of the 2003 Act or Part 2 of the Criminal Justice Act 1991); or(b) where the term of imprisonment referred to in subsection (1) of that section is ordered to be served consecutively on another term of imprisonment, if the length of that other term falls to be reduced by the same day by virtue of section 67 of the Criminal Justice Act 1967."
(Remand in Custody (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005) (SI 2005 No. 2054)
Accordingly, no direction that time spent in custody on remand is to count as part of the sentence should be given when, for the whole or part of that time, the offender has been serving a sentence of imprisonment for another offence (Barber at [30]).
E2.8 Concurrent and Consecutive Custodial Sentences
Bruce [2006] All ER (D) 45 (Feb) (3 February 2006, CA) examines the sentencing problems that may arise in consequence of the Criminal Justice Act 2003, s. 265, by which:
A court sentencing a person to a term of imprisonment may not order or direct that the term is to commence on the expiry of any other sentence of imprisonment from which he has been released early under this Chapter
The defendant in this case had been sentenced to nine and a half years' imprisonment on 27th October 1999 for an offence of drugs importation. He had been released on licence on 23rd February 2004, but his licence had been revoked and he had been recalled in consequence of an offence of assault occasioning actual bodily harm which he committed on 19th February 2005. He was therefore liable, at worst, to remain in custody as a serving prisoner until his entitlement to release when three-quarters of the nine-and-a-half year sentence had been served. The date of that entitlement would have been 9th July 2006.
The judge before whom he was convicted of the assault imposed a sentence of 18 months' imprisonment for it, which the Court of Appeal considered appropriate, but also ordered that this should run consecutively from the end of the existing sentence; and that order was unlawful by virtue of s. 265. On the other hand, the imposition of a concurrent sentence would have added nothing to the unexpired portion of the original sentence for which he had been recalled.
In those circumstances, said the Court of Appeal, a proper sentence would be a return to custody under the Powers of Criminal Courts (Sentencing) Act 2000, s. 116 for a period of 18 months of the unexpired sentence, to be followed by the sentence of 18 months for the offence of assault.
E4 Mandatory Life Sentences
E4.1 Murder: Life Imprisonment
A murder may be a 'sadistic killing' so as to justify a 30-year starting point when determining the appropriate tariff under the Criminal Justice Act 2003, sch. 21 even if any cruelty involved was not motivated by any sadistic sexual perversion. See A-G's References (Nos 108 and 109 of 2005); Swindon and another (2006) The Times, 22 February 2006.
E21 Confiscation Orders
E21.8 Determination of the Recoverable Amount
Dore [1997] 2 Cr App R (S) 152 was followed in Ajibade [2006] All ER (D) 54 (Feb) (6 February 2006, CA), in which the Court of Appeal held that nothing in the Proceeds of Crime Act 2002 affected the principle stated in that case, namely that illegal trafficked drugs have no lawful market value for the purpose of making a confiscation order. See to similar effect Hussain [2006] All ER (D) 395 (Feb) (28 February 2006, CA).
PART F EVIDENCE
F4 Competence and Compellability of Witnesses
F4.16 Children and Persons of Unsound Mind
The ruling of the Court of Appeal in Powell [2006] EWCA Crim 03 was considered in last month's update. It may be contrasted with that of the same court in MacPherson [2005] EWCA Crim 3605 (but actually decided in July 2005) where applying much the same test in much the same kind of case, a somewhat older child witness was found to have been competent to give evidence. There does not seem to have been any problem in this case of the kind that arose in Powell, where the child appeared to be an adequate witness on the videotape interview but proved unable to deal with the simplest of questions in cross-examination.
F12 Character Evidence: Bad Character of Accused
F12.6 Notice
It was argued in R (Robinson) v Sutton Coldfield Magistrates' Court [2006] EWHC 307 (Admin) that a strict approach should be adopted to failures in meeting deadlines relating to the giving of notice, and that "a culture of non-compliance should not be permitted to take root". A court therefore should only exercise its discretion to extend time under CrimPR, r. 35(8), in exceptional circumstances, where it has been provided with sufficiently good reasons as to why the prosecution could not comply with the mandatory time limit.
The Divisional Court agreed that a culture of non-compliance would be unacceptable, but refused to construe the r. 35(8) discretion as narrowly as the claimant suggested. Owen J said:
"The first point to be made is that time limits must be observed. The objective of the Criminal Procedure Rules 'to deal with all cases efficiently and expeditiously' depends upon adherence to the timetable set out in the rules. Secondly, Parliament has given the court a discretionary power to shorten a time limit or to extend it even after it has expired: rule 35(8). In the exercise of that discretion the court will take account of all the relevant considerations, including the furtherance of the over-riding objective. I am not persuaded that the discretion should be fettered in the manner for which the claimant contends, namely that the time should only be extended in exceptional circumstances.
15. In this case there were two principal material considerations: first the reason for the failure to comply with the rules. As to that a party seeking an extension must plainly explain the reasons for its failure. Secondly, there was the question of whether the claimant's position was prejudiced by the failure.
16. The reason advanced for the failure was that the police had made every effort to discover the facts of the previous convictions, but were not able to do so until 7th June. For my part, I have reservations as to the adequacy of that explanation. In my view a court would ordinarily wish to know when the relevant enquiries had been initiated, and in broad terms why they have not been completed within the time allowed. Any application for an extension will be closely scrutinised by the court. A party seeking an extension cannot expect the indulgence of the court unless it clearly sets out the reasons why it is seeking that indulgence. But importantly, I am entirely satisfied that there was no conceivable prejudice to the claimant, bearing in mind that he would have been well aware of the facts of his earlier convictions; secondly, that he was on notice on 14th April that there could be such an application; and thirdly, that there was no application for an adjournment on 16th June from which it is to be inferred that the claimant and his legal advisers did not consider their position to be prejudiced by the short notice.
17. In those circumstances I am not persuaded that the Justices erred in the exercise of their discretion to admit the evidence of bad character, notwithstanding the failure to comply with the rules. This was not a decision at which no reasonable bench of magistrates properly directed could have arrived."
F12.11 Criminal Justice Act 2003: Admissibility under Section 101(1)(d)
Hanson [2005] EWCA Crim 824 was applied in Brima [2006] EWCA Crim 408, in which, on a charge of murder by stabbing, the prosecution were allowed to reinforce what might otherwise have been a less than totally convincing case with evidence of the defendant's previous convictions for two much less serious offences, each involving the use of a knife.
The first conviction in November 2002 was for assault occasioning actual bodily harm. After an altercation with the victim earlier the same day the defendant stabbed him in the leg with a knife. This case had certain other similarities with the present offence, in which the stabbing followed an earlier altercation between the deceased and a friend of the defendant.
The second conviction in April 2003 was for robbery. The facts were that the defendant had held a knife to the throat of the victim, and demanded his training shoes and top which the victim handed over. The prosecution contended that the appellant had a propensity to commit offences of violence using knives either by inflicting or threatening injury.
The case demonstrates once again that evidence which might not have satisfied the old common-law test for admissibility as similar fact evidence may well satisfy the new statutory criteria. Royce J said:
"40. In our judgment, the conclusion as to the capacity of these convictions to establish the requisite propensity that was reached by the judge was correct. He also concluded in answer to the question: 'does the propensity make it more likely that the defendant committed the offence charged?' that 'bearing in mind the proximity of these matters and nature it does'. We agree. Thirdly: is it unjust to rely on these matters and in any event will the proceedings be unfair if they are admitted? The judge, again, came to the conclusion that it would not be unfair to admit the convictions. We do not consider that the judge was plainly wrong. We consider that he was plainly right."
F16 Exceptions to the Rule against Hearsay
F16.15 Discretionary Exclusion of Statements Admissible under ss 116 and 117
- Radak [1999] 1 Cr App R 187 was considered by the Court of Appeal in C and another [2006] EWCA Crim 197. See F16.50 below.
- In R (Robinson) v Sutton Coldfield Magistrates' Court [2006] EWHC 307 (Admin), the Divisional Court examined the circumstances in which a court may properly admit hearsay evidence under the Criminal Justice Act 2003, s. 116, on the basis that the witness is afraid to testify in court. It was argued on behalf of the defendant that according to the witness's statement her fear was of being followed from the court by the defendant, or his friends, so enabling him to discover the women's refuge that was her current address. It was argued that this fear could have been overcome by arrangements being made by the police to transport her to and from the court in such a manner as to ensure that her address was not revealed. Having noted the observations of Leveson J in Arnold [2004] EWCA Crim 1293 and those of Waller LJ in Sellick [2005] EWCA Crim 651, Owen J held that the justices in this case were fully entitled to admit hearsay evidence under s. 116. He was not persuaded by arguments that the justices had given insufficient consideration to possible special measures (which did not fall within the Youth Justice and Criminal Evidence Act 1999) that counsel now suggested could have been adopted so as to allay the witness's fears:
"Whilst in retrospect it might have been sensible to have made enquiries as to what, if any, other arrangements could have been made to convey the complainant both to and from court so as to insure her against the risk of the defendant tracing her, I do not consider that the Justices can be criticised for failing to embark upon such an investigation when that question was not raised before them."
F16.35 Statements in furtherance of Common Purpose
The scope of the 'common purpose' doctrine was again examined in Platten [2006] EWCA Crim 140, in which the Court of Appeal confirmed that a statement made by one of the parties to a conspiracy or common enterprise may be admissible against others even if it does not, strictly speaking, further or advance the conspiracy. Waller LJ said (at [35]):
"The exclusion of what is described as 'mere narrative' applies however only to narrative after the conclusion of the conspiracy. Statements made during the conspiracy and as part of the conspiracy, because they are part of the natural process of making the arrangements to carry out the conspiracy, will be admissible."
Having cited a passage from the judgment of Kennedy LJ in Barham [1997] 2 Cr App R 119, Waller LJ continued:
As that passage makes clear, the evidence is admissible when it can be said of it 'this is the enterprise in operation'. Furthermore . . . the evidence is admissible not just as to the nature and extent of the conspiracy, but also as to the participation in it of persons absent when the declarations are made."
F16.50 Unconvincing and Superfluous Hearsay
The Court of Appeal in C and another [2006] EWCA Crim 197 appears to have adopted a more expansive interpretation of the Criminal Justice Act 2003, s 126, than that put forward in Blackstone's Criminal Practice (see also F16.15). That section, said Pill LJ, gives the court a "general discretion" to exclude evidence [meaning hearsay evidence?] in criminal proceedings. If this is indeed what s. 126 was intended to do, one may perhaps wonder why it is worded so differently from the Criminal Justice Act 1988, ss. 25 and 26.
NEW LEGISLATION
Racial and Religious Hatred Act 2006
This Act received the Royal Assent on 16 February. The main content of the Act is to be found in the Schedule, which when brought into force will insert a new series of provisions (ss. 29A to 29N) into the Public Order Act 1986. Section 2 of the Act amends the Police and Criminal Evidence Act 1984, s. 24A so as to ensure that these new offences cannot give rise to a citizen's arrest.
The new offences, which will form part 3A of the 1986 Act, deal with conduct that involves stirring up hatred against people on religious grounds. Religious hatred is defined in s. 29A as hatred against a group of persons defined by reference to religious belief or lack of religious belief.
Sections 29B to 29G create the new offences. These include the use of words or behaviour or display of written material (s. 29B), publishing or distributing written material (s. 29C), the public performance of a play (s. 29D), distributing, showing or playing a recording (s. 29E) and broadcasting or including a programme in a programme service (s. 29F), and possession of threatening material with a view to using it in a way that is intended to stir up religious hatred (s. 29G), but by s. 29J:
Nothing in [Part 3A] shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.
Sections 29H and 29I deal with powers of entry, search and forfeiture. By s. 29L, no proceedings for an offence under part 3A may be instituted in England and Wales except by or with the consent of the Attorney General.
Serious Organised Crime and Police Act 2005 (Commencment No. 5 and Transitional and Transitory Provisions and Savings) Order 2006 (SI 2006 No. 378)
This Order brings into force on various dates, but with full effect on 6 April 2006, those provisions of the Act that deal with the Serious Organised Crime Agency. It also brings into force on 1 April ss. 71 to 75 (offenders assisting investigations and prosecutions) and ss. 76 to 81 (financial reporting orders). The main elements of s. 163 (criminal record certificates) are brought into force on 6 April.
Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2006 (SI 2006 No. 512)
This Order continues the relevant sections of the 2005 Act in force until 10 March 2007.
NCIS and NCS (Abolition) Order 2006 (SI 2006 No. 540)
This Order abolishes the National Criminal Intelligence Service and the National Crime Squad and their respective Service Authorities.
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