D1.50 Terrorist Investigations

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. Sullivan J ruled that the s 3 procedure was 'conspicuously unfair' and was accordingly 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.

The Terrorism Act 2006 (Commencement No. 1) Order 2006 (SI 2006 No. 1013) brought most of the provisions of the Act into force on 13 April 2006. Sections 26 to 30 are in force and relate to warrants and searches; ss. 31 to 33 are also brought into force and relate to other investigatory powers (including interception warrants and disclosure notices).

D3 Criminal Procedure Rules

D3.3 Case Management

Guidance as to the exercise of case management powers by judges was issued by the Court of Appeal in K [2006] EWCA Crim 724. This guidance emphasises inter alia the judge's power to deal with issues arising prior to the trial exclusively by reference to written submissions, and his power, if he sees fit, to impose limits on the length of such submissions.

D8 Disclosure

D8.1 - Guidance as to the principles relating to disclosure of material by the prosecution may now be found in Disclosure: a Protocol for the Control and Management of Unused Material in the Crown Court). In K [2006] EWCA Crim 724 the Court of Appeal emphasised that this 'Protocol on Disclosure' should be applied by trial judges and by the prosecution, and that defence lawyers should also familiarise themselves with it.

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

D13.14 Preparatory Hearings under the Criminal Procedure and Investigations Act 1996, ss. 28 to 38

The Terrorism Act 2006 (Commencement No. 1) Order 2006 (SI 2006 No. 1013) brought most of the provisions of the Act into force on 13 April 2006. Section 16 amends s. 29 of the 1996 Act to make provision for preparatory hearings in terrorist cases.

D17 Trial on Indictment: Retirement of the Jury and Verdict

D17.1 Basic Rules

Although a judge may not be changed or replaced during the course of a trial, it is possible, in the event of his death or illness, for the jury's verdict to be delivered to a replacement judge: see El-Ghaidouni [2006] EWCA Crim 845. Difficulties may however arise where, as in El-Ghaidoun, the jury return with questions concerning the evidence that the replacement judge cannot satisfactorily answer even with the assistance of counsel. A retrial was ordered in that case.

D23 Anti-social Behaviour Orders

D23.7 ASBOS following Conviction in Criminal Proceedings

Loosely drafted ASBOs continue to cause difficulties for the criminal courts. W v DPP [2005] EWHC 1333 (Admin) was considered but not approved by the Divisional Court in Crown Prosecution Service v T [2006] EWHC 728 (Admin), in which Richards LJ and Clark J 'respectfully declined' to follow the approach adopted in the earlier case. Faced with an even more loosely drafted clause in which the respondent was prohibited from 'acting in an anti-social manner in the city of Manchester', the court held that, despite its manifest defects, such an order had to be treated as valid until and unless it was set aside. On the other hand, It was open to a criminal court or judge to consider whether the relevant provision lacked sufficient clarity to warrant a finding that the respondent's conduct amounted to a breach of the order; whether the lack of clarity provided a reasonable excuse for non-compliance with the order; and whether, if a breach was established, it was appropriate in the circumstances to impose any penalty for the breach.

D24 Appeal to the Court of Appeal

D24.17 Determination of Appeals against Conviction

In Ashton [2006] EWCA Crim 794, the Court of Appeal examined the problem of procedural failures and whether (or when) such failures should be held to render the affected proceedings (and any conviction or sentence) invalid. Having considered the ruling of the House of Lords in Soneji [2005] UKHL 49, Fulford J said:

"It is now wholly clear that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised ("a procedural failure"), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue.

On the other hand, if a court acts without jurisdiction - if, for instance, a magistrates' court purports to try a defendant on a charge of homicide - then the proceedings will usually be invalid."

The court also approved this dictum of Lord Woolf CJ in Sekhon and others [2002] EWCA Crim 2954:

"We would expect a procedural failure only to result in a lack of jurisdiction if this was necessary to ensure that the criminal justice system served the interests of justice and thus the public or where there was at least a real possibility of the defendant suffering prejudice as a consequence of a procedural failure."

E1 Sentencing: General Provisions

E1.2 Sentencing Guidelines

The Court of Appeal has confirmed in A-G's Ref (No 6 of 2006) [2006] EWCA Crim 1043 that the guidelines issued by the Sentencing Guidelines Council do not affect the rules governing minimum sentences for Class A drug trafficking offences or domestic burglary (Powers of Criminal Courts (Sentencing) Act 2000, ss 110 and 111 - see E6.1 and E6.2).

E2 Custodial Sentences: General Provisions

E2.6 Length of Discretionary Custodial Sentences

The problem of prison overcrowding and its potential relevance to sentencing has been considered twice more by the Court of Appeal: first in A-G's Ref (No 11 of 2006); Scarth [2006] EWCA Crim 856 and again a few days later in A-G's Ref (No 19 of 2006); Hoyle [2006] All ER (D) 123 (Apr). When passing sentence in Hoyle for offences of robbery and wounding, in which serious and gratuitous violence (including 29 minor stab wounds) had been inflicted on a disabled victim, the trial judge stated that because of the overcrowding problem he would not be imposing as long a sentence as he would otherwise have done. Concurrent sentences of three and four years which he then imposed were increased on appeal to six and eight years respectfully, and the Court of Appeal indicated that sentences totalling ten years should ordinarily have been imposed. The overcrowding of prisons might have been a relevant factor in lesser cases, where a community sentence might perhaps be justified in place of imprisonment, but in cases of such gravity the full sentence merited by such behaviour should be imposed, without regard to the state of the prisons.

Scarth concerned the imposition of a community penalty for the possession of a Class A drug (6.05 g of heroin) with intent to supply. As in Hoyle, prison overcrowding was cited by the trial judge as a reason for leniency (although the pre-sentence report was also a factor), and as in Hoyle the Court of Appeal's view was that such considerations could properly be taken into account only in marginal cases (those in which the decision was 'on the cusp'). In this case the offence was so serious that only a custodial sentence would suffice. A sentence of two years in a young offenders' institution was therefore substituted.

E6 Prescribed Custodial Sentences

E6.1 Minimum Custodial Sentences for Class A Drugs Offences

The Court of Appeal has confirmed in A-G's Ref (No 6 of 2006) [2006] EWCA Crim 1043 that the guidelines issued by the Sentencing Guidelines Council (see E1.2) do not affect the rules governing minimum sentences for Class A drug-trafficking offences.

E6.2 Minimum Custodial Sentences for Domestic Burglary

The Court of Appeal has confirmed in A-G's Ref (No 6 of 2006) [2006] EWCA Crim 1043 that the guidelines issued by the Sentencing Guidelines Council (see E1.2) do not affect the rules governing minimum sentences for domestic burglary.

F12 Character Evidence: Bad Character of Accused

F12.12 Proof of Propensity

Evidence of a defendant's propensity to commit offences of the kind charged may be provided by criminal convictions relating to offences committed by the defendant either before or after the offence with which he is now charged. It was argued in Adenusi [2006] All ER (D) 231 (Apr) that evidence of subsequent criminal behaviour could not logically establish propensity at the time of the offence charged, but this argument was rightly rejected by the Court of Appeal.

F14 Evidence of Bad Character other than Accused

F14.7 Evidence of Substantial Probative Value

The Criminal Justice Act 2003, s 100, was examined by the Court of Appeal in S [2006] All ER (D) 273 (Apr). The complainant in a case of alleged sexual assault was a prostitute and heroin addict, who had convictions for burglary, theft and related offences, to which she had pleaded guilty. She alleged that the appellant had violently assaulted her. His defence was that he had paid her for 'hand relief' and that she had then demanded further payment, threatening him with a rape allegation if he did not pay up.

The trial judge rejected the appellant's application to cross-examine the complainant as to her convictions on the basis of their relevance to her credibility, and the Court of Appeal appear to have agreed that these convictions were not sufficiently relevant on that particular basis. No transcript is yet available, but this ruling appears, with respect, to be surprising. A complainant with such a criminal record might reasonably be regarded as an untrustworthy witness, even allowing for the fact that she had always pleaded guilty, especially since it was largely a case of her word against the appellant's and credibility was crucial.

This ruling was of no consequence as far as the appellant's case was concerned, because the court took the view that the complainant's convictions were relevant to the issue of her propensity to behave dishonestly (e.g. by blackmailing the appellant as he asserted she had done). A retrial was ordered.

F18 Evidence of Identification

F18.16 Dock Identification

The Privy Council in Edwards v The Queen [2006] UKPC 29 distinguished between 'first time' dock identification, which will ordinarily be unacceptable, and cases in which a witness who has previously identified the defendant as the offender or suspected offender repeats this identification by pointing to the defendant in court. Whilst clearly less objectionable, the view of the Judicial Committee was that this was nevertheless, "an undesirable practice" and that "other means should be adopted of establishing that the defendant in the dock is the man who was arrested for the offence charged".

F18.19 The Turnbull Guidelines

The Turnbull guidelines were considered and applied by the Privy Council in Edwards v The Queen [2006] UKPC 29.

Fines Collection Regulations 2006 (SI 2006 No. 501)

These Regulations support the final pilot scheme for the collection of fines and replace the Fines Collection Regulations 2004 (SI 2004 No. 176).

Collection of Fines (Pilot Scheme) and Discharge of Fines by Unpaid Work (Pilot Schemes) (Amendment) Order 2006 (SI 2006 No. 502)

This Order revokes and replaces the Collection of Fines (Pilot Schemes) Order 2004 (SI 2004 No. 175) and amends the Discharge of Fines by Unpaid Work (Pilot Schemes) Order 2004 (SI 2004 No. 2198). With one exception, the Order ceases to have effect on 2 July 2006.

Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2006 (SI 2006 No. 512)

This Order provides that ss. 1 to 9 of the 2005 Act are to continue in force until 10 March 2007.

The Serious Organised Crime and Police Act 2005 (Consequential and Supplementary Amendments to Secondary Legislation) Order 2006 (SI 2006 No. 594)

This Order amends various statutory instruments and statutory rules of Northern Ireland in consequence of the creation of the Serious Organised Crime Agency and the abolition of the National Criminal Intelligence Agency and the National Crime Squad.

Domestic Violence, Crime and Victims Act 2004 (Victims' Code of Practice) Order 2006 (SI 2006 No. 629)

This Order brings the Code of Practice for Victims of Crime into force on 3 April 2006.

Criminal Justice Act 2003 (Commencement No. 12) Order 2006 (SI 2006 No. 751)

This Order brings into force, on 6 April 2006, sch. 35, paras. 5 (so far as not already in force), 6, 8, 9 and 12, and the repeals in sch. 37, part 11 relating to the Police Act 1997, s. 125, the Private Security Industry Act 2001, the Criminal Justice and Police Act 2001 and the National Health Service and Health Care Professions Act 2002. All the provisions relate to criminal record certificates.

Football Spectators (Prescription) (Amendment) Order 2006 (SI 2006 No. 761)

This Order prescribes additional matches as regulated matches for the purposes of the Football Spectators Act 1989, part II. The restrictions on ticket touting in the Criminal Justice and Public Order Act 1994, s. 166 and banning orders under the 1989 Act apply only in relation to regulated matches.

Anti-Social Behaviour Act 2003 (Commencement No. 4) (Amendment) Order 2006 (SI 2006 No. 835)

This Order has the effect of extending the period of a pilot implementation of s. 85(5) of the 2003 Act (ant-social behaviour orders against juveniles who are not parties) for a further six months to 1 October 2006.

Misuse of Drugs (Amendment) Regulations 2006 (SI 2006 No. 986)

These Regulations amend the Misuse of Drugs Regulations 2001 (SI 2001 No. 3998). Regulations 2 to 7 amend regulations 2, 6B and 7 to 10 of the 2001 Regulations to replace references to 'extended formulary nurse prescribers' with references to 'nurse independent prescribers'.

Regulations 3(c) to (e) and 6(b) amend regulations 6B and 9 of the 2001 Regulations to allow nurse independent prescribers to prescribe and supply diazepam, lorazepam and midazolam for the treatment of tonic-clonic seizures.

Serious Organised Crime and Police Act 2005 (Application and Modification of Certain Enactments to Designated Staff of SOCA) Order 2006 (SI 2006 No. 987)

Under the Serious Organised Crime and Police Act 2005, s. 43, a member of the staff of the Serious Organised Crime Agency can be designated as having the powers of a constable, the customs powers of an officer of Revenue and Customs and the powers of an immigration officer. This Order modifies certain enactments which confer powers on the police (as well as constables) and immigration officers to enable such powers to be exercised by designated members of the staff of SOCA. The modified enactments are the Police and Criminal Evidence Act 1984, the Anti-social Behaviour Act 2003, the Immigration Act 1971 and the Immigration and Asylum Act 1999.

Football Spectators (2006 World Cup Control Period) Order 2006 (SI 2006 No. 988)

This Order establishes a 'control period' for the purposes of the Football Spectators Act 1989, part II. During such a period the powers under ss. 19, 21A and 21B of the 1989 Act are exercisable. The 'control period' begins on 30 May and ends when the last World Cup match of the 2006 tournament is played.

Terrorism Act 2006 (Commencement No. 1) Order 2006 (SI 2006 No. 1013)

This Order brings into force on 13 April 2006:

1. s. 1 to 22, together with sch. 1;
2. ss. 26 to 36, together with sch. 2;
3. ss. 37(1) to (4) and 38;
4. s. 37(5) insofar as it relates to all of the entries in sch. 3 except those relating to para. 36(1) of sch. 8 to the Terrorism Act 2000 and s. 306(2) and (3) of the Criminal Justice Act 2003.

Proceeds of Crime Act 2002 (Money Laundering: Exceptions to Overseas Conduct Defence) Order 2006 (SI 2006 No. 1070)

This Order sets out exceptions to the defences in sections 327(2A), 328(3) and 329(2A) of the Proceeds of Crime Act 2002, ss 327(2A), 328(3) and 329(2A).

Sections 327(1), 328(1) and 329(1) of that Act create offences relating to 'criminal property'. That expression is defined, by s. 340(3), by reference to benefit from 'criminal conduct'. The definition of 'criminal conduct' includes conduct that would constitute an offence in any part of the United Kingdom if it occurred there (see s. 340(2)). The defences apply if the person who would otherwise commit such an offence knows, or believes on reasonable grounds, that the 'relevant criminal conduct' occurred in a particular country or territory outside the UK and was not, at the time it occurred, unlawful under the criminal law then applying in that country or territory. Such a defence does not apply in respect of relevant criminal conduct of a description prescribed in an order. Article 2(2) of this Order prescribes conduct which would constitute an offence punishable by imprisonment for a maximum term in excess of 12 months in any part of the UK if it occurred there other than-

1. an offence under the Gaming Act 1968;
2. an offence under the Lotteries and Amusements Act 1976, or
3. an offence under section 23 or 25 of the Financial Services and Markets Act 2000.

Serious Organised Crime and Police Act 2005 (Commencement No. 6 and Appointed Day) Order 2006 (SI 2006 No. 1085)

This Order brought into force, on 8 May 2006, various provisions of the Act relating to the abolition of the Royal Parks Constabulary and appoints that date as the date on which every relevant person shall cease to be a parks constable.

The Order also brought into force, on 15 May 2006, s 102 of the Act (money laundering: defence where overseas conduct is legal under local law).

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