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Companion Website
Blackstone's Criminal Practice 2006
Part A
Updates to Part A
- A1.30 Causation: Acts of the Victim - June 2006
- A3.27; A3.28; B20.10 Necessity and Duress: Drugs Possession - 6 February 2006
- A3.27 Necessity - February 2006
- A3.30 Self-defence - January 2006
- A3.30 Self-defence, Prevention of Crime and Related Defences - April 2006
- A3.30 Self-defence Prevention of Crime and Related Defences - August 2006
- A3.36 Mistakes of Fact and Self-defence - November 2005
- A5.2 The Mental Element for Accessories - April 2006
- A5.5 Accesories - scope of Joint Venture - 5 August 2005
- A5.6; F18.31 DNA Evidence: Liability of Accessory - 12 July 2006
- A6.3 Incitement - Jurisdiction - 13 August 2006
- A6.7 Incitement: Mens Rea - December 2005
- A6.7 Incitement: Mens Rea - July 2006
- A6.15 Parties to Conspiracies and Acquittal of Other Alleged Conspirators - November 2005
- A6.17 Conspiracy: Conditional Agreements and Contingencies - June 2006
- A6.21 Conspiracy, Suspicion - 9 May 2006
- A6.21 Conspiracy: Mens Rea as to Circumstances - June 2006
- A6.21 Statutory Conspiracy: Mens Rea - August 2006
- A6.27 Conspiracy to Defraud: Actus Reus - February 2006
- A6.33 Sentencing for Attempt - November 2005
- A6.35 Attempt: Mens Rea - November 2005
- A7.4 Interpretation Obligation - January 2006
- A8.11 'Foreign' Offences Triable in England - March 2006
- A8.12 Offences committed at sea - January 2006
- A8.16 Terrorist Offences - May 2006
A1.30 Causation: Acts of the Victim
In Dhaliwal [2006] EWCA Crim 1139, the Court of Appeal held that where D inflicts physical and/or psychological abuse on V and thereby causes her some kind of recognised psychiatric illness (ie injury amounting in law to actual or grievous bodily harm for the purposes of the Offences Against th Person Act 1861, s 47 or s 20) his conduct may give rise to liability for manslaughter (ie constructive manslaughter) should this illness in turn cause V to commit suicide. Conditions such as post-traumatic stress disorder, battered woman syndrome, or reactive depression were identified as potential causes. In Dhaliwal, however, the prosecution could not prove that V had suffered any such psychiatric injury. The infliction of mere psychological harm would not suffice.
The Court of Appeal left open the possibility that a manslaughter conviction might sometimes be supportable on a somewhat different basis, which had been suggested by the trial judge but disavowed by the prosecution, namely that: "where a decision to commit suicide has been triggered by a physical assault which represents the culmination of a course of abusive conduct, it would be possible . . . to argue that the final assault played a significant part in causing the victim's death".
Author: MH
A3.27; A3.28; B20.10 Necessity and Duress: Drugs Possession
In Altham [2006] EWCA Crim 7; (2006) The Times, 1 February 2006; the Court of Appeal held that the State is not, by refusing to permit a person to take cannabis for pain relief, in breach of its obligations under Article 3 of the ECHR not to subject a person to inhuman or degrading treatment.
The defendant had been injured in a road accident some 15 years before. His injuries had not been corrected by surgery. He took cannabis for pain relief. A chance discovery of cannabis on his premises by the police led to his being charged with possession of cannabis contrary to s. 5(2) of the Misuse of Drugs Act 1971. At trial the judge refused to leave the defence of necessity to the jury as a result of which defendant pleaded guilty.
On appeal, it was held that Article 3 applies to State action. Here, the State, by refusing cannabis, neither did nor refrained from doing any thing which would subject the defendant to degrading treatment. In particular the State had done nothing to exacerbate the defendant's condition. The defendant's argument was that (i) the only way in which his symptoms could be alleviated was by taking cannabis and that he could not do so without committing a criminal offence; (ii) the State, by prosecuting him, subjected him to degrading treatment; (iii) therefore, there is a conflict with Article 3, the resolution of which requires the Court to read the Misuse of Drugs Act 1971 as subject to a defence of medical necessity. This argument was rejected as seeking to elevate the State's obligation under Article 3 as something well beyond an obligation not to subject an individual to degrading treatment.
The Court further points out that in Quayle [2005] EWCA Crim 1415, where the focus was on Article 8, the defence of necessity could not be allowed because it would be in conflict with the purpose and effect of the legislative scheme.
Author: LL
A3.27 Necessity
Quayle [2005] EWCA Crim 1415 (see Blackstone's Criminal practice, A3.28) was followed in Altham [2006] EWCA Crim 7, in which the Court of Appeal held that the ECHR, Article 3 does not entitle those who suffer from chronic pain to take cannabis for pain relief, and that by denying them a defence of medical necessity in such circumstances the United Kingdom does not subject them to inhuman or degrading treatment. Scott Baker LJ said:
'[26] In our judgment the state has done nothing to subject the appellant to either inhuman or degrading treatment and thereby engage the absolute prohibition in Article 3. If the true position is that, absent a defence of necessity, the appellant will either break the criminal law or continue to suffer degrading treatment, the state is not in breach of its Article 3 obligation. We make the qualification about the true position because he is now taking another drug, ketamine, that has been prescribed for him and his pain has been alleviated to such an extent that he no longer uses cannabis. . .
[29] The defence of necessity on an individual basis as advocated by this appellant, as it was by the appellants in Quayle, is in conflict with the purpose and effect of the legislative scheme [in the Misuse of Drugs Act 1971]. The reasoning of Mance LJ in Quayle applies with equal force to the present case. In our view Article 3 adds nothing to the extensive arguments that were dealt with by Mance LJ in Quayle.'
Author: MH
A3.30 Self-defence
In Rashford [2005] EWCA Crim 3377 the Court of Appeal held that a defendant need not as a matter of law be deprived of a defence of self-defence merely because it was he who instigated the confrontation at which the need for self defence allegedly arose. A person who kills in the course of a quarrel which he himself started, by provoking it or by entering into it willingly, might still act in self-defence if his 'victim' then retaliates or counterattacks. The question is whether the retaliation etc. was such that the defendant was entitled at that stage to defend himself. If the violence offered by the victim was so out of proportion to the defendant's initial act as to make the defendant fear he was in immediate danger from which he had no other means of escape, and if the violence which he then used was no more than appeared necessary to preserve his own life or protect himself from serious injury, he would be entitled to rely on self-defence.
Author: MH
A3.30 Self-defence, Prevention of Crime and Related Defences
Jones [2005] QB 259 has been affirmed by the House of Lords in Jones and other appeals [2006] UKHL 16. The Appellate Committee held that a crime of aggression under public international law is not a "crime" within the meaning of the Criminal Law Act 1967, s 3. Peace activists opposed to the Iraq war could not therefore justify invasions of airfields or damage to military facilities by arguing that they had been using force in the prevention of crime, even if (and their lordships would not be drawn into ruling upon this) the war in Iraq was indeed illegal. Lord Hoffman said:
"the apprehension, however honest or reasonable, of acts which are thought to be unlawful or contrary to the public interest cannot justify the commission of criminal acts and the issue of justification should be withdrawn from the jury".
Author: MH
A3.30 Self-defence Prevention of Crime and Related Defences
In Ashley and others v Chief Constable of Sussex Police [2006] EWCA Civ 1085, the Court of Appeal provides an interesting analysis of the differences between self-defence etc when used as a defence to a criminal charge and self-defence when used as a defence in civil proceedings. The use of reasonable force in actual self-defence is clearly lawful, but in cases of mistaken self-defence an honest but unreasonable mistake may operate as a defence only in criminal proceedings. In civil proceedings, a mistaken view of the facts provides no defence in the absence of reasonable grounds for that mistake. The burden of proof also differs. In criminal proceedings, the burden of negativing self-defence is on the prosecution; but in civil proceedings the burden is on the defendant to establish that he acted in reasonable self-defence.
In both criminal and civil proceedings, the type of action taken (or degree of force used) in self-defence must objectively be reasonable but, in judging what was reasonable, the court must in either case have regard to all the circumstances, including the fact that the action may have been taken in the heat of the moment (cf Lord Morris's famous dictum in Palmer v R (cited in the main text at A3.35)
Author: MH
A3.36 Mistakes of Fact and Self-defence
O'Grady [1987] 3 All ER 420 has now been followed in Hatton [2005] All ER (D) 308 (Oct) (26 October 2005, CA), despite widespread criticism of the earlier ruling. Somewhat surprisingly, the Court of Appeal in Hatton held that what was said about crimes of specific intent in O'Grady formed part of the ratio decidendi of that case. This, with respect, is difficult to understand given that the court in O'Grady were not required to consider any crime of specific intent, but Hatton was a case of murder and so the point must now be merely academic. It follows that, if D is voluntarily drunk and kills in what he mistakenly imagines to be self-defence because he imagines (as in Hatton) that the deceased was attacking him with a sword, he has no defence to a charge of murder; but if he claims to be so intoxicated that he is experiencing hallucinations and imagines that he is fighting giant snakes (as in Lipman [1969] 3 All ER 410) then he can be guilty only of manslaughter. Is one really less culpable than the other?
Author: MH
A5.2 The Mental Element for Accessories
Johnson v Youden [1950] 1 KB 544 and Powell; English [1999] AC 1 were considered by the Court of Appeal in Webster [2006] EWCA Crim 415, in which it was held that in order to establish liability for aiding and abetting an offence of causing death by dangerous driving (by permitting an intoxicated friend to drive), the prosecution must prove that the accused realised the driver was likely to drive dangerously. Knowledge of the driver's intoxication was not in itself enough, because driving when intoxicated is not in itself dangerous driving (Woodward [1995] 3 All ER 79; and see C3.9). Once the manner of driving became obviously dangerous, liability on the basis of a failure to intervene would depend on whether there was any opportunity to intervene and, if so, on whether failure to take such an opportunity amounted to encouragement or assistance.
Author: MH
A5.5 The Scope of the Joint Venture
Attorney-General's Reference (No. 3 of 2004) [2005] EWCA Crim 1882 provides an interesting decision on liability for manslaughter and the scope of joint enterprise. H was re-arraigned, on a re-trial, on indictment for manslaughter. The Crown proposed to put the case on the footing that H, the accessory, sent K and C to R to apply pressure on him through terror, that H knew that K and C would have a loaded firearm with them, and knew that in order to maximise the pressure on R the firearm might be deliberately discharged near R. It was further agreed that the judge had to decide the issue on the basis that H did not intend physically to kill or injure R nor had he foreseen the possibility of physical injury or death to R. It was apparently thought that not to make this assumption would be inconsistent with the defendant's acquittal for murder.
The defence argument, which succeeded on arraignment, was that the assumed facts were not such as to found a conviction for manslaughter. The Attorney General referred the following questions to the Court:
- "1. Where a secondary party to a joint enterprise contemplates that the carrying out of the joint enterprise will involve the commission of an act intended to frighten the victim (for example by the discharge of a firearm) and the principal carries out the act with an intention to kill or cause serious bodily harm thus causing the death of the victim, does the variation in the intent of the participants at the time the act is done preclude the act from being part of the joint enterprise or may a jury nevertheless convict the secondary party of manslaughter?
- Where the Court of Appeal quashes the conviction and orders the retrial of a person who was originally convicted of manslaughter on an indictment for murder, may the prosecution present its case at the retrial on the basis of facts which, if correct, would establish guilt of manslaughter as a lesser included offence of murder?"
The Court of Appeal on hearing the reference agreed with the defence argument.
The answer to H's liability depended on the scope of the joint enterprise. The assumed facts were thoroughly artificial but, on the basis of them, it could not be said that H foresaw that the gun would be fired in circumstances in which H knew or foresaw that harm to R might occur. Here, K's act in firing the gun so as to kill R or cause him grievous bodily harm was of a fundamentally different character to any act contemplated by H. On the assumed facts, what K did was fundamentally different from what H foresaw might occur. Had H been party to a common design to cause some harm to R then he, having authorised the firing of the gun, albeit to frighten, would have been liable for manslaughter because he would have realised that the party, in this case K, might intentionally cause some harm to the victim, R.
But here, on the assumed facts, H did not foresee the possibility of any harm to R let alone intentional harm.
This case contains a very full discussion of the authorities. The Court notes that the law is clearly laid down in Powell and English [1997] UKHL 45, and earlier authorities which are inconsistent with that judgment are no longer good law.
Click here for full text of Powell and English.
Author: LL
A5.6; F18.31 DNA Evidence: Liability of Accessory
Bates [2006] EWCA Crim 1395 considers the admissibility of partial profile DNA evidence, considering Doheny [1997] 1 Cr App R 369. The defendant was charged with one Garside of the murder of Garside"s estranged wife. The prosecution case was that Bates killed Marilyn Garside and that he was incited by Garside to do so. DNA evidence at the scene produced a partial profile that was interpreted as providing a 1 in 610,000 probability that Bates was the killer. A statistical value of 1 was given to the voids in the partial profile The defence objected that the evidence was inadmissible arguing that it was impossible to ascribe a statistical value to the potentially exculpatory effect of the voids in a partial profile. The defence expert stated that the match profile was probably lower than 1 in 610,000. The trial judge admitted the evidence concluding that the issue of probability and thus probative value was for the jury.
The Court of Appeal agreed. Of Doheny it stated (at [29]):
we can find nothing in that case to support the proposition that only match probability calculations which take into account the statistical value of every conceivable possibility are admissible in evidence or that evidence based on partial profiles must be rejected in every case. That does not reflect the approach taken by Prof. Balding in his evidence to the judge on the voir dire, nor do we think it is consistent with good sense. The court in Doheny . . . was primarily concerned to provide guidance of a general nature in relation to the presentation of DNA evidence and to expose and eradicate the so-called "prosecutor's fallacy" which elevated the significance of the evidence beyond its proper level. It was not concerned with the distinction between full profile evidence and partial profile evidence, although there are passing indications in the judgment that the court may have had partial profile as well as full profile evidence in mind - see, for example, the reference to "the frequency with which the matching DNA characteristics are likely to be found in the population at large" at page 374E. Moreover, it is necessary to bear in mind that in one sense all profiles currently obtainable are partial inasmuch as present techniques only allow testing at 10 loci. We were told that at the time when the tests considered in Doheny . . . were performed the analysis was carried out by reference to 6 loci; now it is carried out by reference to 10 and we were told in the course of argument that advances in technology may make it possible to test by reference to many more. It remains the case, however, that the presence of one allele at one locus that does not match the profile of the comparator is sufficient to exclude that person as the contributor.
There is, the Court concluded, no reason why partial profile DNA evidence should not be admissible provided that the jury are made aware of its inherent limitations and are given a sufficient explanation to enable them to evaluate it.
The trial judge, having regard to the way in which the prosecution presented its case, directed the jury that they could convict Garside only if they were sure that Bates was the killer. The appellant argued that this was a misdirection because a secondary party may be convicted despite the fact that the principal is acquitted. The Court concluded that, while the appellant"s contention might be correct as a matter of law, no other direction was possible in the light of the way the prosecution put its case against Garside.
Author: LL
A6.3 Incitement - Jurisdiction
In Tompkins (2006) The Times, 17 August 2006 the defendant was charged with inciting the distribution or showing of indecent photographs of children, the evidence being that he had subscribed to a child pornography net in Texas. A Crown Court judge stayed the indictment, holding that the court lacked jurisdiction over an offence of incitement where the person incited (the operator of the pornography net in this case) was abroad. The Court of Appeal allowed a prosecution appeal against the ruling. holding that the act of incitement was that of a person inciting another, abroad, to commit an offence which would come into effect in England and Wales. Accordingly, as the incitement took the form of inciting the distribution of indecent images, which distribution would occur at least in part in the United Kingdom, the Crown Court had jurisdiction over it. See Liangsiriprasert v United States [1991] 2 AC 225, Goldman [2001] EWCA Crim 1684, R (O) v Coventry JJ [2004] All ER (D) 78 (Apr); Smith (Wallace Duncan) (No. 4) [2004] EWCA Crim 631, all of which were considered by the Court.
Author: LL
A6.7 Incitement: Mens Rea
The criticism of Curr [1968] 2 QB 944 in Blackstone's Criminal Practice has been endorsed by the Court of Appeal in Claydon [2005] EWCA Crim 2817. This ruling did not however do anything to assist the prosecution in Claydon, who sought the conviction of C on charges of inciting a boy under the age of 14 to commit buggery. The problem with this charge was that it concerned alleged events which predated the abolition (on 20 September 1993) of the so-called 'irrebuttable presumption of incapacity' (i.e. the common-law rule by which a boy under that age was deemed physically incapable of committing any such act).
It was argued by the Crown that, although the boy could not (in law) have committed the act incited, it was nevertheless quite possible for the defendant to incite him. Having considered Whitehouse [1995] 1 Cr App R 420 and Pickford [1995] Cr App R 420 the Court of Appeal felt obliged to reject that argument. As Laws J said in Pickford (at p 424), 'it is a necessary element of the element of incitement that the person incited must be capable [by which he meant capable as a matter of law] of committing the primary crime'.
No such rule applies under the Sexual Offences Act 2003 or to things allegedly amounting to offences under the old law after 20 September 2003.
Author: MH
A6.7 Incitement: Mens Rea
See Walker [2006] All ER (D) 08 (Jun) (6 June 2006, CA), which is discussed at B3.46.
Author: MH
A6.15 Parties to Conspiracies and Acquittal of Other Alleged Conspirators
Although in certain circumstances the Criminal Law Act 1977, s 5(8), permits the conviction of one alleged conspirator when all others are acquitted, it has often proved difficult to determine whether the circumstances of a given case are capable of supporting such apparently inconsistent verdicts. With the exception of cases in which there is evidence (such as confession evidence) that is admissible against one defendant only, or cases in which the identity (but not the existence) of the other conspirator(s) remains uncertain, it seems that such verdicts will usually be considered mutually inconsistent. The same is true by analogy of cases in which one defendant is convicted but in which the jury fails to agree in respect of the other(s), although in such cases it may be possible (as in Elkins [2005] EWCA Crim 2711) for the court to order a retrial of both (or all) defendants.
Elkins also illustrates the fact that evidence which may at first glance appear to incriminate one defendant rather than another may in fact be admissible against both, notably where it involves acts done in furtherance of a joint venture. See also Testouri [2003] EWCA Crim 3735, [2004] 2 Cr App R 26.
Click here for the full text of the judgment in Elkins.
Click here for the full text of the judgment in Testouri.
Author: MH
A6.17 Conspiracy: Conditional Agreements and Contingencies
The view that contingency planning (as in O'Hadhmaill [1996] Crim LR 509) may amount to a criminal conspiracy appears to have been endorsed by the House of Lords in Saik [2006] UKHL 18; but their lordships distinguished such cases from that in which A and B agree to launder money or other property that they suspect may possibly represent the proceeds of crime. If they do not know or intend this to be the case (as is required by the Criminal Law Act 1922, s 1(2): see A6.21) they are not guilty of conspiracy, even though it may transpire that their suspicions are well founded (in which case they may end up committing a substantive money laundering offence).
Author: MH
A6.21 Conspiracy, Suspicion
In Saik [2006] UKHL 18, [2006] 2 WLR 993, (2006) The Times, 5 May 2006, the House of Lords held that mere suspicion that property might be the proceeds of crime is not sufficient to establish guilt of conspiracy to engage in money laundering. The defendant pleaded guilty to conspiracy to launder money subject to the qualification that while he suspected that the money might have been the proceeds of crime he did not know that that was the case. This was reasonable grounds for suspicion sufficient for the full offence but not, their lordships held, for the conspiracy. Section 1(2) of the Criminal Law Act 1977 applies to all conspiracies. The conspirator must intend or know that a fact or circumstance shall or will exist when a conspiracy is carried into effect. In the case of a conspiracy where property has not been identified when the agreement was made, the prosecution must prove that the conspirator intended that the property, the subject of the agreement, would be property which was the proceeds of crime.
As to the Criminal Justice Act 1988, s. 93C (now superseded), the property must emanate from crime and the conspirator must intend that the property emanate from crime. If these ingredients are established, the offence of conspiracy is made out. In this type of case, namely, where the conspiracy related to unidentified property, there is no question of having to prove that the property was the proceeds of criminal conduct. Lord Nicholls of Birkenhead states:
"In this type of case that is not possible. It is not possible because the property which was the subject of the conspiracy had not been identified when the conspiracy was entered into. Despite this, the crime of conspiracy will be committed. It will be committed even if the property never materialises or never exists. The observation in paragraph 147 in the court's judgment in R v Ali [2006] 2 WLR 316, 351, should not be read as applying in this type of case.". . .
If the property was identified at the time the agreement was made, s. 93C is construed so that the prosecution must prove both that it represented the proceeds of crime and that the conspirator knew the property to have been the proceeds of crime. Under s. 2 of the Criminal Law Act 1977, the words 'intend' or 'know' signify true belief.
Lord Hope delivered a speech to the same effect. Neither Lord Hope nor Lord Nicholls deal with the case where the defendant's state of mind was wilful blindness since the bare facts of the defendant's plea and the qualification to it did not permit such an inference to be entertained. Lord Steyn concurred with Lord Nicholls. Lord Brown concurred with Lord Hope. Baroness Hale dissented in part but concurred in the result.
Click here for the full text of the judgment.
Author: LL
A6.21 Conspiracy: Mens Rea as to Circumstances
Any lingering doubts as to the application of the Criminal Law Act 1977, s. 1(2), to cases of conspiracy to commit money laundering offences under the 'old' law (i.e. in cases not governed by the PCA 2002 (see B22)) have now been resolved by the decision of the House of Lords in Saik [2006] UKHL 18.
The House has confirmed that both Singh [2003] EWCA Crim 3712 and Sakavickas [2004] EWCA Crim 2686 were based on an interpretation of the substantive money laundering law that was later rejected by the House of Lords in Montila [2004] UKHL 50, and that neither of those cases survives the ruling in Montila.Author: MH
A6.21 Statutory Conspiracy: Mens Rea
Montila [2004] UKHL 50 was considered and Saik [2006] UKHL 18, [2006] All ER (D) 24 (May) followed in Ramzan and others [2006] All ER (D) 318 (Jul).
(Saik, which was considered in the June update at A6.17 and A6.21, confirmed that both Singh [2003] EWCA Crim 3712 and Sakavickas [2004] EWCA Crim 2686, were based on an interpretation of the substantive money laundering law that was later rejected by the House of Lords in Montila, and that neither of those cases survives the ruling in Montila.)
Author: MH
A6.27 Conspiracy to Defraud: Actus Reus
Mba [2006] All ER (D) 73 (Jan), 16 January 2006, CA provides a good example of the potential for a single count of conspiracy to defraud to be founded on evidence of numerous fraudulent transactions, as long as it can be shown that those transactions were effected pursuant to a single agreement.
Author: MH
A6.33 Sentencing for Attempt
Specific guidance as to sentencing for offences of attempted murder has been provided by the Court of Appeal in Ford [2005] EWCA Crim 1358. This guidance takes account of the greatly increased tariffs now imposed in many cases of murder itself, and recognises that in grave cases of attempt significantly increased sentences may now be required, so as to ensure that those convicted serve approximately half the period of imprisonment that would have been imposed on conviction for the full offence.
In less serious cases of attempted murder, however, increased sentencing levels may not be required, and this includes cases where any killing would have resulted in a conviction for voluntary manslaughter rather than murder.
Click here for the full text of the judgment.
Author: MH
A6.35 Attempt: Mens Rea
There are cases in which recklessness as to circumstances may form part of the mens rea of a criminal attempt, but nothing less than intent will suffice in respect of any attempted consequences or results. It is accordingly quite wrong for a judge to refer in his summing up to 'maliciousness' or 'recklessness' where the defendant is charged with an offence such as attempting to cause grievous bodily harm. See Boyton [2005] All ER (D) 354 (Oct) (28 October 2005, CA).
Author: MH
A7.4 Interpretation Obligation
Ghaidan v Godin-Mendoza [2004] 3 All ER 411 was considered in Holding [2005] EWCA Crim 3185, a case involving an alleged offence under the Representation of the People Act 1983, s. 75(1) (prohibition of expenses not authorised by election agent) in which it was argued that the court should 'read and give effect to' the provision in a way which was compatible with the right to freedom of expression under the ECHR, Article 10, pursuant to the Human Rights Act 1998, s. 3.
Agreeing with this submission, the court held that the following propositions could be extracted from Ghaidan.
- Section 3 is an interpretive and not an amending provision. Parliament has retained the right to enact legislation which is not ECHR-compliant;
- In looking for the intention of Parliament, due weight must be given to the intention evidenced by s. 3 of the 1998 Act itself;
- Section 3 is not dependent on finding an ambiguity or absurdity in the text in order to bring it into conformity with a Convention right;
- Where s. 3 comes into play, it obliges the court to give an abnormal construction to the statutory language and one which cannot be achieved by resort to standard principles and presumptions;
- But s. 3 cannot be used to go "against the grain" of the legislation;
- Section 3 is the primary means of ensuring compatibility with Convention rights, and a declaration of incompatibility is a last resort;
- The precise form of words read in for the purpose of s. 3 is of no significance. As Lord Nicholls said at [35]. "It is their substantive effect which matters".
In R (on the application of Hammond) v Secretary of State for the Home Department [2005] UKHL 69, the House of Lords (affirming the earlier decision of the Divisional Court ([2004] EWHC 2753 (Admin)) adopted a radical reinterpretation of the Criminal Justice Act 2003, sch. 22, para. 11 in order to avoid incompatibility with the ECHR, Article 6. See E4.1 below. As their lordships explained, however, the Secretary of State had expressly accepted the need for such reinterpretation should the House find para. 11 to be incompatible as it stood and the House was therefore not asked to decide whether such a bold exercise in "interpretation" would otherwise have been permissible. Arguably it may have infringed propositions (i) and/or (v) from Ghaidan v Godin-Mendoza (above).
Author: MH
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.
Author: MH
A8.12 Offences committed at sea
In Goodwin [2005] EWCA Crim 3184, the Court of Appeal held that a jet ski, or indeed any other craft used merely for the purpose of 'having fun on the water' is not a ship, even if it is buoyant and capable of carrying passengers, because such craft are not used in navigation (i.e. for the purpose of conducting a voyage). It makes no difference if a jet ski is registered (as many are) under the Merchant Shipping Act 1995.
It is submitted that a different conclusion might have to be reached should a future case arise involving a jet ski that was indeed being used for the purpose of navigation on short voyages or journeys. The definition of a ship in the Merchant Shipping Act 1995, s. 313 is not dependent on size or on whether the craft is capable of conducting deep ocean voyages.
Author: MH
A8.16 Terrorist Offences
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 17 significantly extends English (and other UK) criminal jurisdiction over terrorist conduct abroad, irrespective of whether the alleged offender is a British citizen or, in the case of a company, a company incorporated in a part of the United Kingdom.
Author: MH
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