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Companion Website
Blackstone's Criminal Practice 2006
October 2005
October Updates
The October Update was prepared by Michael Hirst, Professor of Criminal Justice, De Montfort University, Leicester, with assistance from Laurence Eastham, Editorial Co-ordinator, Blackstone's Criminal Practice.
- Part B: Offences
- Part C: Road Traffic Offences
- Part D: Procedure
- Part E: Sentencing
- Part F: Evidence
- New Legislation
PART B OFFENCES
B3 Sexual Offences
B3.109 Sexual Activity with Child Family Member: Sentencing
Guidance as to sentencing in cases involving consensual sex with older children who are family members (in this case a girl aged 17 who had previously been fostered with the defendant, but was living in semi-independent accommodation at the time of the offences) is provided by Thomas [2005] EWCA 2343. A sentence of four years' imprisonment was quashed and replaced with one of two and a half years, having regard (inter alia) to the appellant's guilty plea, and to the ages of the parties, the nature and length of the sexual activity and the number of occasions on which it had occurred.
B4 Theft, Handling Stolen Goods and Related Offences
B4.103 Aggravated Vehicle-Taking: Sentence
As to the imposition of consecutive sentences where the defendant has been convicted both of aggravated vehicle-taking and of a related offence (in this case driving while disqualified), see Forbes [2005] EWCA Crim 2069. The trial judge in that case imposed the maximum permissible sentences (two years plus six months consecutive detention in a young offender institution, each consecutive to the unexpired portion of a previous sentence from which he had been released on licence) on a defendant who had a shocking record, enjoyed police chases and was rightly described as a 'menace' to other road users; but the sentences were reduced to 18 months plus four months consecutive on the basis that no allowance had been made for his guilty pleas (even though such pleas were in effect unavoidable, given the evidence against him).
Click here for full text of the judgment.
B5 Deception and Blackmail
B5.26 Obtaining Property by Deception: Sentencing
In Seward [2005] EWCA Crim 1941 the Court of Appeal gave consideration to sentencing for deception offences involving 'identity theft' – an increasingly frequent type of offence, but one for which (as the court noted) there is a paucity of sentencing authorities.
The appellant, who had a drug problem, was sentenced to imprisonment for eight offences of dishonesty, including two of obtaining property of a total value of £10,000 by deception and four of using a false instrument. It was argued that the appellant's rehabilitation might instead have benefited from a drug treatment and testing order, for which he had been assessed as suitable, but the court concluded that the prison sentence imposed, whilst severe, was not unjustified and should be upheld. Henriques J said (at [14]):
'Identity fraud is a particularly pernicious and prevalent form of dishonesty calling for, in our judgment, deterrent sentences. There was here an actual loss of £10,000, none of which was recovered even though stolen that day, and a potential loss of £15,000. It is the appellant's case that he was only the front man, acting on the instruction of others, he taking the risk by reason of the prevalence of CCTV cameras. It was inevitable that he and not others would be brought to justice. His position has been likened to the mule in drug importation cases.'
B8 Damage to Property
B8.11 Arson: Indictment
Booth [1999] Crim LR144 was distinguished by the Court of Appeal in Drayton [2005] EWCA Crim 2013. The appellant in this case was sentenced to a total of three years' imprisonment after being committed to the Crown Court for sentence on pleas of guilty to one charge of burglary and one of causing criminal damage to property by fire. The word, 'arson' had not been used in respect of the later charge, but his appeal against conviction was nevertheless dismissed. Giving the judgment of the court, Hedley J said (at [10]):
'Clearly on indictment where the rules require both a statement of offence and particulars of offence it is desirable that the word 'arson' should continue to be used in the statement of offence. Whether the absence of that word 'arson' from a count that plainly alleges damage by fire and nothing else invalidates the count must await decision as and when that point arises.'
In this case, however, there was no possible basis for invalidating the conviction. As Hedley J explained at [15] :
'A requirement to charge as arson means a requirement to charge as damage by fire, rather than damage by any other means as that can materially affect penalty. To charge causing damage by fire is to charge arson because that is exactly what arson means, no more and no less. Damage by fire and arson are exactly synonymous concepts. We hold that this charge was, in the context of a charge in the Magistrates' Court, a valid charge under the Criminal Damage Act 1971 s 1(3), to which the applicant could lawfully plead and on which he could be lawfully committed. We do not believe for a moment that the purpose of the statutory provision was to invalidate any charge that did not use the word arson. The mandatory substance of that provision is that damage by fire, as opposed to anything else, had to be identified before anyone could be exposed to the penalties of arson.'
B11 Offences affecting Public Order
B11.58 Intentionally Causing Harassment, Alarm or Distress
As to the relationship between the offence under the Public Order Act 1996, s. 4A and a person's right to exercise free speech, which is guaranteed under the ECHR Article 10, see Dehal v Crown Prosecution Service [2005] EWHC 2154 (Admin), in which the defendant had entered a Sikh Temple and affixed a notice to a notice-board which, inter alia, described the president of the Temple as a hypocrite. Quashing his conviction, which had previously been upheld by the Crown Court, Moses J emphasised (following Hammond v DPP [2004] EWHC 69 (Admin): see Blackstone's Criminal Practice, B11.68), that a conviction for such an offence could be justified only where the prosecution was brought in pursuance of a legitimate aim and was necessary to achieve that aim. The court below had failed in its stated case to identify any basis on which the prosecution could have satisfied those requirements.
Click here for full text of Dehal v Crown Prosecution Service.
Click here for full text of Hammond v DPP.
B11.68 Compliance with the European Convention on Human Rights
See also Dehal v Crown Prosecution Service [2005] EWHC 2154 (Admin), noted at B11.58.
Click here for full text of Dehal v Crown Prosecution Service.
B12 Offences relating to Weapons
B12.20 Possession Generally
The concept of 'possession' was examined in the context of firearms offences in Uddin [2005] EWCA Crim 2653, in which the Court of Appeal held that, although there was evidence that the appellant had examined a gun with a view to purchasing it (by looking into a bag containing the gun), the fact that he never took possession of the bag made his conviction for unlawful possession unsustainable.
B14 Offences against the Administration of Justice
B14.29 Perverting the Course of Justice: Sentencing
When sentencing an offender for an offence of perverting the course of justice, account must of course be taken of the seriousness of the offence itself, but the offender should not be sentenced (or appear to be sentenced) in respect of any further possible offences that his lies etc may have enable him to conceal or for which he may have evaded conviction: Corcoran [2005] EWCA Crim 2586.
B20 Offences related to Drugs
B20.107 Class C Drugs Offences: Sentencing
Concurrent sentences of 18 months' imprisonment (following a guilty plea) for repeatedly supplying cannabis to a child of 12 were upheld in Love [2005] EWCA Crim 2571; but see also Reardon [2005] EWCA Crim 2418 (sentence of one year's imprisonment (on a guilty plea) for supplying cannabis to undercover police officers reduced on appeal to 6 months (to run consecutively to a sentence of two years for supplying a class A drug).
PART C ROAD TRAFFIC OFFENCES
C3 Offences relating to Driving Triable on Indictment
C3.41 Driving while Disqualified: Punishment
As to the imposition of consecutive sentences where the defendant has been convicted both of driving while disqualified and a related offence (in this case aggravated vehicle-taking), see Forbes [2005] EWCA Crim 2069.
Click here for full text of the judgment.
PART D PROCEDURE
D24 Appeal to the Court of Appeal
D24.24 Inconsistent Verdicts
The Court of Appeal is notoriously reluctant to accept that two apparently inconsistent verdicts returned by the same jury are indeed logically inconsistent, but its ruling in B & Q plc [2005] EWCA Crim 2297 is perhaps easier to defend than some others. A fatal accident occurred in one of the defendant company's stores when a poorly driven forklift truck reversed into a customer and an employee, killing the former and injuring the latter. The defendant company was charged (inter alia) with two offences relating to that accident, namely (1) with failing in its duty to ensure so far as was reasonably practicable the health, safety and welfare at work of an employee (contrary to the Health and Safety at Work etc Act 1974, s 2(1)) and (2) with failing to conduct its activities in such a way as to ensure, so far as was reasonably practicable, that persons not in its employment would not be exposed to risks to their health and safety (contrary to s. 3(1)). The jury was directed to consider each count separately, and acquitted the defendant on the count relating to its employee but convicted it on the count relating to the safety of the customer.
As the court pointed out, there was a possible basis for the different verdicts in this case, namely that the employee who was injured had been instructed on safety measures, had been issued with a brightly coloured safety vest and was himself a trained forklift driver who might have been expected to take greater care for his own safety, whereas little seems to have been done to safeguard the customer.
The case also provides a useful analysis of much of the case law on inconsistent or allegedly inconsistent verdicts, including a number of cases (such as W(M) 30 March 1999) that remain unreported.
Click here for full text of the judgment.
D29 Public Funding and Costs
D29.5 Applying for a representation order
The Criminal Defence Service (General) (No. 2) (Amendment) Regulations 2005 (SI 205 No. 2784) amend the Criminal Defence Service (General) (No. 2) Regulations 2001 (SI 2001 No. 1437) so as to provide for an increase in the financial eligibility limits for advice and assistance specified in reg. 5 from £192 to £194 (income eligibility limit for advocacy assistance – reg. 5(3)) and from £91 to £92 (income eligibility limit for advice and assistance – reg. 5(5)).
PART E SENTENCING
E1 Sentencing: General Provisions
E1.6 Reduction in Sentence for Guilty Pleas
The guidance given by the Sentencing Guidelines Council as to the effect of guilty pleas was applied in Forbes [2005] EWCA Crim 2069, in which the Court of Appeal held that some credit should be given for the appellant's guilty plea, even though the case was a bad one and the prosecution evidence was so strong that such a plea was almost inevitable. Richards J said:
'What was said in March [2002] 2 Cr App R (S) 448, 457 [[2002] EWCA Crim 551] about the existence of an exception where a plea, practically speaking, is inevitable needs to be viewed with some caution in the light of the guidance given by the Sentencing Guidelines Council - guidance which underlines the strong policy reasons why credit is generally to be given for a plea of guilty and why that credit should not be lost just because an offender would have little prospect of acquittal if he contested the case.'
E2 Custodial Sentences: General Provisions
E2.8 Concurrent and Consecutive Sentences
As to the imposition of consecutive sentences where the defendant has been convicted both of driving while disqualified and a related offence of aggravated vehicle taking) see Forbes [2005] EWCA Crim 2069, where Richards J said:
'The basic offence in the present case of aggravated vehicle taking is the taking of the vehicle, albeit that the manner of driving was a feature of the aggravated form of the offence. It seems to us that the offence of driving while disqualified is sufficiently distinct to make it permissible to impose a consecutive sentence if the circumstances otherwise warrant it. Whether or not concurrent sentences would generally be imposed, it is not the case that they must always be imposed. Accordingly, we see nothing wrong with the judge's approach in imposing consecutive sentences.'Click here for full text of the judgment.
E4 Mandatory Life Sentences
E4.1 Murder: Life Imprisonment
In the notorious case of Re Huntley (application under para 6 of Sch 22 to the Criminal Justice Act 2003) (2005) Daily Telegraph, 6 October 2005, there was in fact no proof of premeditation or of a sexual motive for the murders of the two child victims. It followed that a whole life tariff could not be imposed. The court identified a starting period of 30 years, but because of various aggravating features (in particular, he killed one of the girls to avoid that girl disclosing his murder of the first, and concealed and attempted to destroy the bodies of both of his victims) and his lack of remorse, a substantial upward adjustment to the starting point was appropriate, leading to a final tariff of 40 years.
E5 Custodial Sentences for Dangerous Offenders
E5.6 Detention for Life or Detention for Public Protection
Some guidance as to the proper approach to the imposition of sentences of detention for pubic protection under the Criminal Justice Act 2003, s 226(3) is provided by D (Hollie Louise) [2005] EWCA Crim 2292, in which the Court of Appeal ruled that such a sentence (including a minimum of 12 months' detention) could not be justified in the case of a girl of 13 who had pleaded guilty to a series of offences including a robbery that involved a violent 20 minute assault on a younger child. In light of reports showing that the appellant was now making good progress towards controlling her behaviour, the Court of Appeal quashed the indeterminate sentence and substituted an extended sentence of four years with a custodial term of 12 months and a three-year extension, under the Criminal Justice Act 2003, s 228.
E5.8 Extended Sentence: Persons under 18
See the note on D (Hollie Louise) [2005] EWCA Crim 2292 (E5.6 above).
E6 Prescribed Custodial Sentences
E6.3 Minimum Custodial Sentences for Firearms Offences
As to exceptional circumstances that may justify a sentence of less than five years, see Mehmet [2005] EWCA Crim 2074, in which a combination of the following circumstances was held to be exceptional (although it seems that none would have been if taken in isolation): (i) that the weapon had lawfully been in the defendant's possession for some time; (ii) the defendant had been in a state of depression during the period of grace and had not been aware of what had happened; and (iii) the nature of the weapon (a gas cartridge revolver), which had originally been perfectly lawful. A sentence of two and a half years was substituted.
See also Rehman [2005] EWCA Crim 2056,(2005) The Times, 29 September 2005.
PART F EVIDENCE
F12 Character Evidence: Evidence of Bad Character of Accused
F12.21 Risk of Collusion between Witnesses
H [1995] 2 AC 596 was applied by the Court of Appeal in Kinsey [2005] EWCA Crim 1871. The court emphasised in particular Lord Mackay's dictum in H that:
'Even if the judge himself is of the view that there is no real possibility of collusion, when the matter has been argued he should leave the issue to the jury.'
NEW LEGISLATION
The Criminal Defence Service (Funding) (Amendment) Order 2005 (SI 2005 No. 2621)
The principal amendments made by this Order to the principal Order of 2001 are as follows:
- An appeal to the High Court against a costs judge's decision will be governed by part 52 of the Civil Procedure Rules 1998 instead of part 8 of those rules.
- The power to grant an uplift of solicitors' fees is restricted to certain types of work in respect of certain offences and to a maximum of 100 per cent in all cases.
- Schedule 4 to the 2001 Order, which concerns fees for advocacy in the Crown Court, is amended so that it covers all guilty pleas and cracked trials.
- New scales of graduated fees for trials in the Crown Court are substituted in the table in para. 8 in part 2 of sch 4. (e) A new payment scheme for guilty pleas and cracked trials is introduced by the substitution of new scales in the table in para. 10 in part 3 of sch 4.
- The proportions of the fees payable to advocates other than Queen's Counsel where two trial advocates are instructed to represent the same person are altered.
- The rates of pay in very high cost cases for preparation, advocacy and preliminary hearings are altered by the substitution of new tables in sch 5 to the 2001 Order.
The Costs in Criminal Cases (General) (Amendment) Regulations 2005 (SI 2005 No 2622)
These Regulations amend part 3 of the Costs in Criminal Cases (General) Regulations 1986 (SI 1986 No. 1335), which relates to orders for a defendant's costs to be paid out of central funds.
Regulation 11(7) is amended so that an appeal to the High Court against a cost judge's decision will be governed by part 52 of the Civil Procedure Rules 1998, instead of part 8.
Regulation 12(2) is amended so that where an application is made out of time the appropriate authority, Senior Costs Judge or (as applicable) court may reduce the amount of costs awarded if it considers it reasonable to do so, subject to the applicant having an opportunity to show cause why it should not do so.
The Criminal Defence Service (General) (No. 2) (Amendment) Regulations 2005 (SI 205 No. 2784)
These Regulations amend the Criminal Defence Service (General) (No. 2) Regulations 2001 (SI 2001 No. 1437) so as to include the proceedings specified in these Regulations as criminal proceedings for the purposes of the Criminal Defence Service. The specified proceedings are ones relating to:
- certain intervention orders under ss. 1G and 1H of the Crime and Disorder Act 1998;
- certain parenting orders under ss. 20, 22, 26 and 28 of the Anti-Social Behaviour Act 2003 and part 1A of sch 1 to the Powers of Criminal Courts (Sentencing) Act 2000;
- notification orders, sexual offences prevention orders and risk of sexual harm orders (and interim orders in each case) and foreign travel orders under ss. 97, 100, 101, 104, 108, 109, 110, 114, 118, 119, 123, 125, 126 and 127 of the Sexual Offences Act 2003, and
- restraining orders on acquittal under s. 5A of the Protection from Harassment Act 1997.
The Regulations also provide for an increase in the financial eligibility limits for advice and assistance.
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