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Academic, Professional, & General
Blackstone's Criminal Practice 2006
Updates
Part B 10 - 23
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Blackstone's Criminal Practice 2006

Part B 10 - 23

Updates to Part B, sections B11 - B23

February 2006

B11.42 Affray

The Court of Appeal's ruling in Carey [2006] EWCA Crim 17 (see B1.34 above) contains observations as to the liability of a defendant who is party to an affray in which further offences (e.g. wounding or manslaughter) are committed by other parties to that affray. His liability for such further offences depends on the general principles of secondary participation. He is not made liable for such offences merely by virtue of the Public Order Act 1986, s. 3(2).

Author: MH

21 October 2005

B11.55, B11.68 Fear or Provocation of Violence

Dehal v CPS [2005] EWHC 2154 (Admin) applies principles concerning the reconciliation of public order offences and the ECHR, Article 10 discussed at B11.68. In brief, the defendant, who had been at odds with the management of his Sikh Temple posted a notice outside the Temple which described the President and others in such offensive terms as hypocrite, liar, maker of false statements and "mad proud dog". He was prosecuted and convicted of the offence under the Public Order Act 1986, s. 4A (intentionally causing harassment, alarm or distress: see B11.55).

Moses J. noted that the Crown Court had failed to set out the reasons why Crown counsel had argued that prosecution was a proportionate response or why the Crown Court had held that it was. In such a case as this, in order to justify one of the essential foundations of a democratic society, the prosecution must demonstrate that the prosecution is being brought in pursuit of a democratic aim, the protection of society against violence, and that a criminal prosecution is the only method necessary to achieve that aim. There must be some relevant history: for example past violence or a threat to public order. Prosecution must be necessary to prevent public order and such a finding must be clearly justified in the papers before the court.

Click here for a link to the full judgment.

Author: LL

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October 2005

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.

Author: MH

June 2006

B11.58 and B11.71 Harassment, Alarm or Distress

DPP v Orum [1988] 3 All ER 449 was considered by the Divisional Court in R v DPP [2006] All ER (D) 250 (May), in which the court emphasised (in the context of a prosecution under the POA 1986, s 4A) the essential difference between behaviour that was merely insulting and that which might cause or be intended to cause real emotional upset or disturbance. The court refused to accept that a police officer might have suffered (or been intended to suffer) any such emotional upset merely by being called a 'wanker' by a 12 year old boy.

Author: MH

June 2006

B11.62 Police Powers

The nature of power given to police officers under the Anti-social Behaviour Act 2003, s 30(6) was re-examined by the Court of Appeal in R (W) v Metropolitan Police Commissioner and another [2006] EWCA Civ 458. Following the designation by senior officers of two 'dispersal areas' in the Richmond area, the applicants in this case sought:

  1. a declaration that the Human Rights Act 1998, s 3, requires that s 30(6) should be read down so as either (1) to limit a constable's power to remove a person under 16 to cases in which the constable reasonably believes the person is himself acting or likely to act in an anti-social manner, or (2) to construe the sub-section as not giving the constable power to use reasonable force to remove the person;
  2. a declaration that the Richmond dispersal authorisation was unlawful because it was given on a misunderstanding as to the meaning and scope of s 30(6); and an order quashing the authorisation; or
  3. a declaration of incompatibility under the Human Rights Act 1998, s 4, in respect of s 30(6).

Reversing an earlier ruling of the Divisional Court ([2005] EWHC 1586 (Admin)) the Court of Appeal held that s 20(6) does in fact authorise, in appropriate cases, the forcible or coercive removal from an dispersal area of a person under 16. It did not however amount to a curfew provision, nor if properly exercised did the power infringe any human rights. Section 30(6) would only have a curfew effect if it gave an arbitrary power of removal; as if it gave a constable power to remove to his place of residence any unaccompanied child within a designated dispersal area at night whatever the child was doing and whatever the circumstances prevailing in the area. But the court held that the provision does not create any such arbitrary power. The power given to officers is not a power of arrest, and is designed both to protect children within a designated dispersal area at night from the physical and social risks of anti-social behaviour by others and to prevent such children from themselves participating in anti-social behaviour within a designated dispersal area at night. It did not confer an arbitrary power to remove children simply because they were in a designated area at night.

Giving the judgment of the court, May LJ cited R (Gillan and Another) v Commissioner of Police of the Metropolis [2006] UKHL 12 and said at [34]:

There are legislative constraints on the powers conferred by section 30. . . . These include the requirement to designate an area (section 30(1)(a)); that anti-social behaviour should there be a significant and persistent problem (section 30(1)(b)); that the period is limited to not more than 6 months (section 30(2)); that the constable has reasonable grounds for believing that the presence or behaviour of a group of two or more persons in a public place has resulted or is likely to result in members of the public being intimidated, harassed, alarmed or distressed (section 30(3)); that the constable's first main power is to give dispersal directions (section 30(4)); the limitations in section 30(5); the formal safeguards for authorisation (section 31(1)) and the required seniority of the relevant officer (section 36); the requirement for the consent of the local authority (section 31(2)); and the requirement for publicity (section 31(3), (4) and (5)). Specifically for the power in section 30(6), there is the constraint that the constable must have reasonable grounds for believing that a person under the age of 16 is not under the effective control of a parent or a responsible person aged 18 or over; and the requirement that, if the power under section 30(6) is exercised, a relevant local authority must be notified (section 32(4)). Further and importantly in Gillan Lord Bingham said of the relevant constraints of that case:

'Lastly, it is clear that any misuse of the power to authorise or confirm or search will expose the authorising officer, the Secretary of State or the constable, as the case may be, to corrective legal action.'

Author: MH

August 2006

B11.62 Police Powers

The powers given to police officers under the Anti-social Behaviour Act 2003, s. 30 were further examined by the Divisional Court in Bucknell v DPP [2006] EWHC 1888 (Admin), in which the appellant, aged 17, had been found in an area which had been designated a dispersal area under the Act. He was in one of two groups of youths seen congregating in the area at about 5pm on a school day. There was no evidence or suggestion that either of the groups was behaving in an anti-social manner, but a constable formed the view that the mere presence of those youths was likely to result in members of the public being intimidated, harassed, alarmed or distressed. He therefore directed them to leave the area pursuant to s. 30(4)(b) of the act. The appellant did not comply and was arrested. He was then convicted of contravening the constable's direction, contrary to s. 32(2), but the Divisional Court held that, in the absence of exceptional circumstances, there would have to have been some behaviour by the group which indicated that intimidation, harassment, alarm or distress had resulted or would result. As it was, the constable's direction to disperse had amounted to an illegitimate intrusion with the rights of people to go where they wanted in public.

Author: MH

October 2005

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.

Author: MH

May 2006

B11.71 Harassment, Alarm or Distress

In Taylor v DPP [2006] All ER (D) 271 (Apr) the Divisional Court rejected arguments that an offence under the Public Order Act 1986, s 5(1)(a) requires proof that a potential victim did at least hear or see the offending words or behaviour. It is enough, said the court, that the offending words or behaviour were capable of being seen or heard by such a person.

Author: MH

16 February 2006

B11.93 Protection from Harassment

The defendant in Howlett v Holding [2006] EWHC 41 (QBD), (2006) The Times, 8 February 2006, an application for an injunction arising from a planning application, flew aircraft with banners referring to Mrs. Howlett in abusive and derogatory terms, and placed her under secret surveillance claiming that she was committing benefit fraud. The claimant, who had spoken out as a councillor in respect of a planning application brought by the defendant, sought and obtained injunctive relief. In the course of his judgment Eady J held that to leave Mrs. Howlett in a situation where she might be placed under surveillance was to permit a course of conduct amounting to harassment under s. 1(1) of the Protection From Harassment Act 1997. The defendant could not avail himself of the statutory defence under s. 1(3), namely that he was seeking to detect a crime, because that defence existed for the benefit of law enforcement agencies and not for private citizens. Even if a private citizen was entitled to invoke the defence he would have to show that there was, objectively judged, a rational basis for the surveillance. Here there was none.

The flying of banners from aircraft could also constitute harassment, notwithstanding that an injunction would infringe the person's freedom of speech under the ECHR, Article 10 but the defendant's right to free speech did not necessarily prevail over the claimant's Article 8 right to her physical and psychological integrity. The injury done to the claimant's right was out of all proportion to the value to be attached, in this case, to the right of free speech under Article 10. It would seem to follow that, in criminal proceedings, on facts such as these, an invocation of Article 10 would also not serve as a defence simply because it does not afford a basis for reading s. 1(1) as excluding any and all infringements of the right to free speech.

Author: LL

3 November 2005

B11.100 Public Nuisance

Rimmington [2005] UKHL 63, (2005) The Times, 28 October 2005 contains a full analysis of the offence of public nuisance. Rimmington sent a large number of racist, coarse, crude and racially insulting letters to individuals. His argument that such conduct did not amount to public nuisance was rejected at a preliminary hearing and appeal was taken ultimately to the House of Lords. The appellant in the conjoined appeal, Goldstein, sent salt as a practical joke to a business associate. Salt leaked at a sorting office causing it to be shut down for a time the staff fearing that it might be powder containing anthrax spores. It was clear that Mr. Goldstein neither knew nor appreciated that the salt might leak.

Their lordships accepted the definitions of the offence according to which public nuisance involves an act or omission if the effect is to endanger the life, health, property or comfort of the public or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty's subjects. The word "morals" also appears in this catalogue in Archbold and in the rendition of the Court of Appeal's judgment in Goldstein given at B11.100 of the main work but, according to Lord Bingham and Lord Rodger, reference to morals is misplaced.

So viewed, Rimmington could not have committed the offence because what he did was not an injury to the community or to a significant section of the public as a whole. It is not enough that distress is caused to separate individuals. Norbury [1978] Crim LR 451 and Johnson [1997] 1 WLR 367 are disapproved. A hoax perpetrated on one individual also falls outside the offence unless, as Lord Nicholls points out, it is calculated to affect a significant section of the public as would be the case of a telephone call to one person suggesting the presence of a bomb in a given location. Mr. Goldstein simply lacked the mens rea for the offence because he neither intended nor appreciated that the salt would leak.

Most situations which fall under public nuisance also fall under statutory offences, some of which are referred to by Lady Hale. In such cases the statutory offence should be charged. In particular it is not appropriate to charge the common-law offence in order to circumvent the time limits or limitations on punishment applicable to a statutory offence.

The judgment of Lord Bingham of Cornhill contains a very full account of the history of the offence and a critical analysis of the case law.

Click here for a link to the full text of the judgments in the case.

Author: LL

November 2005

B11.106 The Public Nature of the Nuisance

Johnson [1996] 2 Cr App R 434 has been overruled by the House of Lords in Goldstein and Rimmington [2005] UKHL 63. Lord Bingham said at [37] and [38]:

"I cannot. . . accept that Norbury [1978] Crim LR 435 and Johnson (Anthony). . .were correctly decided. . . To permit a conviction of causing a public nuisance to rest on an injury caused to separate individuals rather than on an injury suffered by the community or a significant section of it as a whole was to contradict the rationale of the offence and pervert its nature, in Convention terms to change the essential constituent elements of the offence to the detriment of the accused. The offence was cut adrift from its intellectual moorings.

. . . The crime of public nuisance does not extend to separate and individual telephone calls, however persistent and vexatious, and the extension of the crime to cover postal communications would be a further illegitimate extension."

For the full judgments in the case, click here.

Author: MH

December 2005

B11.129 Dispersal of Groups

The police have the power under the Anti-social Behaviour Act 2003, s. 30 to make an order for the dispersal of a protest or demonstration. It is clear that Parliament did not intend to exclude protests from the scope of the new powers: see R (Singh) v Chief Constable of West Midlands Police [2005] EWHC 2840 (Admin).

Author: MH

November 2005

B11.107 Public Nuisance: Mens Rea

In Goldstein and Rimmington [2005] UKHL 63, the House of Lords reversed the Court of Appeal's earlier ruling in Goldstein [2003] EWCA Crim 3450, but did so largely because they took a different view of the facts in that particular case. The mens rea requirement as stated in Shorrock [1994] QB 279 was approved.

For the full judgments in the case, click here.

Author: MH

11 November 2005

B11.156; D1.66 Racially aggravated offence; discretion to prosecute

Rogers [2005] EWCA Crim 2863 holds that such an epithet as "bloody foreigners" may suffice to found a charge of racially aggravated abusive or insulting words etc with intent contrary to the Crime and Disorder Act 1998, s. 31(1)(a). Here the defendant, who had been drinking, was travelling on a motorised mobility scooter when he encountered three Spanish women. An altercation ensued in the course of which he referred to the women as "bloody foreigners" and told them to go back to their own country. He then pursued them aggressively to a kebab shop.

It was held that the offence was made out. Foreigners constitute a racial group within the meaning of the Crime and Disorder Act 1998, s. 28(4) (""racial group" means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins"). Hostility demonstrated towards foreigners because they are foreign can be just as objectionable as hostility based on a more limited racial characteristic. The prosecution need not prove that the epithet was used as a disguised attack upon an ethnic etc. group to which the victim belonged. It is not the case that a racial group must be distinguished by racial characteristics: DPP v M [2004] EWHC 1453; AG's Reference No. 4 of 2004 [2005] EWCA Crim 899 followed; dictum in White [2001] EWCA Crim 216 disapproved.

The Court further notes that the width of the meaning of racist group for the purposes of s. 28(4) gives rise to a danger that charges of aggravated offences will be brought where vulgar abuse has included racial epithets that, in the circumstances, do not indicate hostility to the race in question. Section 28 is designed to deal with racist behaviour. Prosecutors should not bring charges based on its provisions unless they are satisfied that the facts truly suggest that the offence charged was aggravated by racism.

Click here for the full judgment in Rogers.

Click here for the full judgment in DPP v M.

Author: LL

November 2005

B11.181 Drunk and Disorderly Behaviour

In R (H) v CPS [2005] EWHC 2459 (Admin), it was held that no offence is committed under the Criminal Justice Act 1967, s 91(1) where the defendant is proved to have become disorderly only after his arrest for that offence. The defendant had been arguing with door staff outside a public house, but the justices declined to categorise this as disorderly behaviour and therefore concluded that his arrest had been unjustified.

click here for the full text of the judgment.

Author: MH

December 2005

B11.191 Drunk in a Late Night Refreshment House

The Licensing Act 2003 (Commencement No. 7 and Transitional Provisions) Order 2005 (SI 2005 No. 3056) brings into force on 24 November 2005, inter alia, sch. 7 of the Act, which includes the repeal of the Late Night Refreshment Houses Act 1969.

Author: MH

December 2005

B11.192 Purchasing Liquor for a Drunkard

The Licensing Act 2003 (Commencement No. 7 and Transitional Provisions) Order 2005 (SI 2005 No. 3056) brings into force on 24 November 2005, inter alia, s. 142 of the Act (obtaining alcohol for a person who is drunk).

Author: MH

December 2005

B11.193 Drunk and Disorderly Person Failing to Leave etc

The Licensing Act 2003 (Commencement No. 7 and Transitional Provisions) Order 2005 (SI 2005 No. 3056) brings into force on 24 November 2005, inter alia, s. 143 of the Act (failure to leave licensed premises).

Author: MH

December 2005

B11.194 Children and Alcohol

The Licensing Act 2003 (Commencement No. 7 and Transitional Provisions) Order 2005 (SI 2005 No. 3056) brings into force on 24 November 2005, inter alia, ss. 145 to 153 of the Act.

The Licensing Act 2003 (Consequential Amendments) Order 2005 (SI 2005 No. 3048) includes amendments to the Criminal Justice and Police Act 2001, s. 1 and to the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002 No. 1837) which have the effect of making offences under the Licensing Act 2003, ss. 146(1) and (3), 149(3) and (4) and 151 into offences which may attract a fixed penalty of "80 and offences under ss. 149(1) and 150 of that Act into offences which may attract a fixed penalty of "50.

Author: MH

December 2005

B11.195 Offences Committed by Licensees

The Licensing Act 2003 (Commencement No. 7 and Transitional Provisions) Order 2005 (SI 2005 No. 3056) brings into force on 24 November 2005, inter alia, sch. 7, which repeals the relevant provisions of the Licensing Act 1964 and the Refreshment Houses 1969.

Author: MH

December 2005

B11.196 Drunkenness and Disorderly Conduct

The Licensing Act 2003 (Commencement No. 7 and Transitional Provisions) Order 2005 (SI 2005 No. 3056) brings into force on 24 November 2005, inter alia, s. 140 of the Act (allowing disorderly conduct on licensed premises).

Author: MH

December 2005

B11.197 Selling Alcohol to a Person who is Drunk

The Licensing Act 2003 (Commencement No. 7 and Transitional Provisions) Order 2005 (SI 2005 No. 3056) brings into force on 24 November 2005, inter alia, s. 141 of the Act.

The Licensing Act 2003 (Consequential Amendments) Order 2005 (SI 2005 No. 3048) includes amendments to the Criminal Justice and Police Act 2001, s. 1 and to the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002 No. 1837) which have the effect of making offences under the Licensing Act 2003, s. 141 into offences which may attract a fixed penalty of "80.

Author: MH

December 2005

B11.198 Offences in relation to Unauthorised Licensable Activities and Alcohol

The Licensing Act 2003 (Commencement No. 7 and Transitional Provisions) Order 2005 (SI 2005 No. 3056) brings into force on 24 November 2005, inter alia, s. 136 to 138 of the Act and the related provisions.

Author: MH

December 2005

B11.199 Selling Alcohol on or from Moving Vehicles

The Licensing Act 2003 (Commencement No. 7 and Transitional Provisions) Order 2005 (SI 2005 No. 3056) brings into force on 24 November 2005, inter alia, s. 156 of the Act.

Author: MH

December 2005

B11.200 Selling Alcohol on Trains

The Licensing Act 2003 (Commencement No. 7 and Transitional Provisions) Order 2005 (SI 2005 No. 3056) brings into force on 24 November 2005, inter alia, s. 157 of the Act.

Author: MH

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July 2006

B12.12 Imitation Firearms

Bentham [2005] UKHL 18 and Morris (1984) 79 Cr App R 104 were considered by the Court of Appeal in Williams [2006] EWCA Crim 1650, in which D had pleaded guilty to possession of an 'imitation firearm' that eventually proved to be only a bottle in a plastic bag.

The court took the view (as does Blackstone's Criminal Practice) that the authority of Morris is unaffected by Bentham. Moses LJ said:

11. In our judgment, [Bentham] has nothing to do with this case. The statute, as well as the decision of the House of Lords in Bentham, are authority for the proposition that a defendant must be proved to have with him a thing which, absent a plea of guilty, the jury is sure has the appearance of a lethal barrelled weapon of any description. In the instant appeal, the appellant admitted he had a "thing" with him, namely a bottle, independent of his own body. Whether it had the appearance of a firearm was a question of fact to be judged not by the words he used, but by the appearance of the thing.

12. There was no warrant, in our judgment, for the suggestion, made on behalf of this appellant, that the thing had to be adapted or altered to be made to look like a firearm, like the metal pipes bound together in Morris [1984] 79 Cr App R 104. A stick or table leg within a bag might have the appearance of a firearm. The question of whether the jury is persuaded that the thing a defendant has with him has the appearance of a firearm is to be determined on all the evidence, including the evidence of witnesses at the time. But their evidence, whilst it is material in order to illustrate to the jury what appearance the thing had at the time, is not dispositive. It is a matter for a jury, on the evidence, to judge what appearance the thing had at the material time.

Author: MH

September 2006

B12.12 Imitation Firearms

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

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

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

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

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

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

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

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

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

Author: MH

October 2005

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.

Author: MH

10 April 2006

Possession of firearm with intent to endanger life

In Norris [2006] EWCA Crim 738 the Court of Appeal held that a person can be guilty of an offence under the Firearms Act 1968, s. 16 if he has in his possession a firearm containing a cartridge which for some reason cannot be fired. The firearm was a modified weapon which was capable of firing a live round. Someone previously had unsuccessfully attempted to fire the cartridge but it was incapable of being fired.

The Court holds that, provided a proper direction in intent is given, it will normally be sufficient for the judge to explain the definition of a firearm to the jury and to leave it at that so far as the actus reus is concerned. While the defendant needs to be in possession of a gun ready for use, this does not mean a gun loaded with effective ammunition. It can be ready for use if loaded with ineffective ammunition and can be so ready for use if the defendant believes that it is. The issue is whether the firearm is ready for use if and when the occasion arises. The term "ready for use" is a gloss on the statute but it illuminates the necessity for an intent to endanger life. The real question will be with what intent the defendant had the firearm in possession. That intent is not defined by the physical capabilities of the bullet at the time when the trigger comes to be pulled. Knowledge by the defendant that the cartridge would not work would be relevant to intent. The prosecution need not, however, prove an immediate intent to endanger life.

The court certified a question for the House of Lords but declined to grant leave.

Bentham [1973] QB 357 was considered.

Author: LL

8 August 2006

B12.52 Possession of firearm with intent to cause fear of violence

Goluchowski [2006] EWCA Crim 1972 holds that it is not necessary to establish the offence under s. 16A of the Firearms Act 1968 to show that a person in possession of a firearm or imitation firearm had an intent prior to its use to cause a person to believe that unlawful violence would be used against him or another person.

The defendant had an imitation firearm with him in a pub (a bb gun). He was found to have produced the weapon and to have uttered threats to a barman. His defence was a denial of having uttered threats. Counsel further argued that in order to commit the offence the person in possession of the weapon had to have had a prior intention to use it to cause his victim to fear that unlawful violence would be used against him. The Court rejected this interpretation. Possession is a continuing act. It is sufficient to prove that a person in possession formed an intention on the sudden to place another in fear. Authorities under other legislation, and in particular Ohlson v Hylton [1975] 1 WLR 724 are distinguished.

Author: LL

January 2006

B13.69 Trespass on a Designated Site

The Serious Organised Crime and Police Act 2005 (Designated Sites) Order 2005 (SI 2005 No. 3447) designates sites for the purpose of the Serious Organised Crime and Police Act 2005, ss. 128 (sites in England and Wales) and 129 (sites in Scotland). Northwood Headquarters, nine RAF sites and three naval establishments are designated.

Author: MH

May 2006

B13.69 Trespass on a Designated Site

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 12 amends the Serious Organised Crime and Police Act 2005, s. 128 so as to substitute references to 'protected site' for the references to 'designated site' and so as to add a definition of the term 'protected site' (essentially a nuclear site or a designated site).

Author: MH

October 2005

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.

Author: MH

September 2004

B14.31 Acts which may amount to perverting the course of justice

Iaquaniello [2005] EWCA Crim 2029 was a prosecution for perverting the course of justice, where the Crown must prove in relation to the act charged that it tended and was intended to pervert the course of justice. It was held that the prosecution need not be more specific than that: It is not necessary to prove that a particular act would pervert the course of criminal rather than civil justice. The acts in the instant case were allegedly committed either to support a civil claim against the Metropolitan Police Commissioner or to provoke significant police investigations.

Author: MH

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6 December 2005

B14.54 Escape - lawful custody

Dhillon (Pritpal) [2005] EWCA Crim 2996, (2005) The Times, 29 November 2005 contains a useful summary of the ingredients of the common-law offence of escape from lawful custody, a crime which, as the court remarks, is not particularly well dealt with in the standard books.

The defendant was arrested as an illegal immigrant. At the police station to which he was taken he was examined by a doctor and taken by a police officer to Hillingdon Hospital for a suspected knee fracture to be x-rayed. A PC Mitchell said that at 1 pm he was directed to the hospital to take over custody from another officer (whose name he could not recall). PC Mitchell said that when he arrived at the hospital his colleague said "that is Dhillon" and pointed out the defendant to him. The defendant appeared to respond to his name. The defendant went in for his x-ray. PC Mitchell did not see him re-emerge and, after conducting a search which revealed an alternative exit, reported the defendant as missing. The appellant, on arrest, years later, denied escape saying that he was not aware that he was under police guard at the hospital. He said that after his x-ray he could not see any police officer waiting for him and so left the hospital.

The jury's task in assessing the issue was rendered the more difficult because the original officer was not called to give evidence of the circumstances of the handover.

The Court of Appeal held, following a review of the relevant authorities, that four elements must be proved to establish the offence:

  • that the defendant was in custody;
  • that he knew that he was in custody (or at least was reckless whether he was or not);
  • that the custody was lawful; and
  • that the defendant intentionally escaped from lawful custody.

Here, three were real issues relating to the continuity of custody following the initial arrest and in particular concerning the handover to PC Mitchell, and to the defendant's awareness of the constraints upon him. The summing up failed conspicuously to deal properly with these issues. The appeal was allowed.

Author: LL

10 August 2006

B15.1 Misconduct in public office

Boulanger v The Queen [2006] SCC 32 is an interesting decision on the residual offence of misconduct in public office. Although based on s. 122 of the Canadian Criminal Code, it is illuminating on the common-law offence and contains a full discussion of the relevant English and Commonwealth authorities. Boulanger was director of security for Varennes, Quebec. This was a public office. In the course of his duties, he instructed a constable, who had prepared a report into a vehicle accident in which his daughter was involved, to prepare a fuller report. As a result the appellant's daughter was shown not to be at fault. The appellant did not seek to influence the content of the report in any way. He was, nonetheless, convicted of misconduct in public office. Section 122 provides that a person commits an offence who, in connection with the duties of his office, commits fraud or breach of trust. This reproduces art. 121 of Stephen's Digest of Criminal Law relating to misfeasance in public office, but not art. 122 dealing with neglect.

The Supreme Court's discussion of the different elements of the two offences as they appear in the Canadian case law need not detain an English reader. It is clear from A-G's Ref (No. 3 of 2003) [2004] EWCA Crim 868 that wilful misconduct is required whether the offence sounds in misfeasance or failure to act. The Supreme Court's summary of the misfeasance offence is, however, clear and crisp and would, in England, apply to all variants of the common-law offence. McLachlin CJC per curiam sums them up as follows: "I conclude that the offence of breach of trust by a public officer will be established where the Crown proves beyond a reasonable doubt the following elements:

  1. The accused is an official;
  2. The accused was acting in connection with the duties of his or her office;
  3. The accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office;
  4. The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused's position of public trust; and
  5. The accused acted with the intention to use his or her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.

This summary is consistent with the A-G's Ref (No. 3 of 2003) at [61]. As with that case, the Supreme Court stresses that regard must be had to the responsibilities of the office-holder, the importance of the public office served, and the nature and extent of the departure from those responsibilities. In the result the Supreme Court concluded that the appellant lacked the mens rea for the offence, it not being enough that the exercise of his duty in fact conferred a collateral benefit upon his family, and further that the actus reus of the offence had not been made out.

Author: LL

02 September 2005

B15.7 Meaning of Corruptly

In Singh v The State [2005] UKPC 35, which concerned actions in Trinidad and Tobago, the Privy Council considered corruption legislation which is similar to that in England and Wales. The issue was whether a person who instigates a transaction with another, which he purports to that other is intended corruptly to influence a public officer (in this instance a magistrate), can be guilty of doing an act which the legislation forbids as tending to corrupt public officers in soliciting or receiving money for the express purpose of bribing them, even though the person instigating the transaction does not intend in fact to bribe the public officer. It was held that it is not necessary to prove that any member, officer or servant of a public body was in fact aware of what was going on when the improper offer was made or the bribe was passed, provided that the apparent purpose of the transaction was to affect the conduct of such a person corruptly: Smith [1960] 2 QB 423 was followed and Harrington (CACD No 00/1780/X2, 28 September 2000 (unreported)) was approved.

Click here to view the full text of Singh v The State.

Author: LL

4 November 2005

B16.2; E21.8 Cheating the Public Revenue: Confiscation Orders

Stannard [2005] EWCA Crim 2717, although decided under the provisions of the Criminal Justice Act 1988, is of importance under the regime established by the Proceeds of Crime Act 2002.

Stannard was convicted of two counts of cheating the revenue of corporation tax by claiming or causing to be claimed a deduction against profits for interest paid in advance by two companies to Anglo-Austrian Finance Limited when in truth and in fact no such transaction had taken place. The scheme was for Stannard's company to acquire the two target companies for their balance sheet value plus an amount equal to approximately half of the corporation tax liability. Having acquired the companies, Stannard arranged for the creation of false documents designed to give the impression that Anglo-Austrian had subscribed for bearer debenture bonds on which interest would be payable in advance.

On appeal the issue was as to the amount of realisable benefit. Stannard claimed that he was not a shareholder of either of the two companies involved, but merely the beneficiary of a discretionary trust, so that it would be inappropriate to lift the corporate veil. The Court rejected this contention. The judge below had in substance found that there was no trust. Stannard's control was inconsistent with the existence of a trust. The companies were effectively controlled by Stannard. It was therefore proper to lift the veil with a view to determining what assets were his and realisable.

The issue further arose, in the context of determining realisable property, as to what the ingredients of the offence were and when it took place. The actual acquisitions were not in themselves criminal. The scheme of fraud had, however, to be looked at as a whole. The substance of the cheat was the creation of the false debentures and the extraction of money on the strength of them. This could only have been done with a view either to submitting no tax returns or false tax returns. On the basis of that conduct charges of cheating the revenue could be laid and while the indictments took account of the later event of submitting false returns, these events were not an essential ingredient of the offence. The substance of the offence was in earlier transactions, which preceded gifts in issue in the case. That date was relevant for the purpose of the confiscation proceedings.

The offence could be proved on the basis of an omission, by deliberate conduct prejudicing the Revenue's right to the tax in question, and can be established without proof of loss from the cheat.

Click here for a link to the full judgment in Stannard.

Author: LL

05 August 2005

B17.18 Obscene materials-sentence

A person who imports obscene articles contrary to the Customs and Excise Management Act 1979, s. 170(2)(b) may be required to register under the notification provisions of the Sexual Offences Act 2003 (as to which see the SOA 2003, s. 80 and sch. 3, para. 14). A person convicted under s. 170(2)(b) had either to have known of the nature of the goods concerned or have taken a chance as to their nature. The notification requirement in this context does not offend against the ECHR, Article 8 as it is a proportionate response to the harm posed by such materials (Forbes v Secretary of State for the Home Department [2005] EWHC 1597 (QB)).

Click here for the full judgement

Author: LL

June 2006

B18.3 Unauthorised Modification of Computer Material

'Mail bombing' attacks, in which a computer of system is slowed down or disabled by the sending of vast numbers of email messages, may amount to offences under the Computer Misuse Act 1990, s 3. Although a computer owner may consent to the sending of email messages under normal circumstances, this implied consent plainly does not extend to messages designed to disable his computer or network: DPP v Lennon [2006] EWHC 1201 (Admin).

Author: MH

21 February 2006

B19.40 Communications-Grossly Offensive messages

In DPP v. Collins [2005] EWHC 1308; [2006] 1 WLR 308 the defendant, who was charged and acquitted under s. 127(1) of the Communications Act 2003, telephoned the offices of his MP in relation to a wide range of political matters. In conversations with employees at the office and on messages left on the telephone answering machine he used racist terms. These sprang from frustration at the way in which his affairs were being handled. The recipients of the messages, none of whom belonged to a racial group referred to, found them depressing or upsetting. The MP was not personally offended but was concerned about the possible effect on his staff. The justices found that the terms were offensive but that a reasonable person would not find them grossly offensive.

The Divisional Court rejected a prosecution appeal. Some added value had to be found to turn a message from offensive to grossly offensive. That depended upon whether the messages, in their particular circumstances and context, were to be regarded in the wider society which the Justices represent, as grossly offensive. The wider society concerned by the standards of which the message is to be judged is an open and just multi-racial society.

Here the context was significant. The defendant was entitled to benefit from the fact that, by good fortune, none of the recipients of the message was offended. The context, that of addressing grievances to his MP was also significant. The approach of the Justices was correct.

The Court considers obiter the requisites for conviction of the different categories of messages in section 127. Menace involves an intent to threaten. Obscene and indecent are to be judged objectively.

On November 12, 2005 the House of Lords granted a petition by the prosecution for leave to appeal to the House of Lords.

Author: LL

25 July 2005

B19.40 Grossly Offensive messages

DPP v Collins [2006] UKHL 40; (2006) The Times, 21 July 2006 holds that the purpose of the Communications Act 2003, s. 127(1) is to prohibit the use of a service provided and funded by the public for the benefit of the public from the transmission of communications which contravene the basic standards of society. The essence of the offence lies in the transmission of a message or other matter that is grossly offensive and is either known by the sender to be so or is such that the sender is aware that it might be taken to be so. A culpable state of mind will ordinarily be found where a message was sent in terms showing an intent to insult those to whom the message related or, alternatively, in terms giving rise to the inference that the sender must have recognised that the terms were insulting. Lord Bingham who delivered the leading judgment, points out that a culpable state of mind may be inferred where facts known to the sender of a message about the intended recipient rendered the message peculiarly offensive.

Lord Carswell adds that if one concedes that a member of a relevant ethnic minority who heard the messages found them to be grossly offensive then it is hard to conclude that a reasonable member of an open and just multi-racial society would not do so. Lord Brown further holds that acceptance of the purpose of the legislation as being to protect the communications system itself from abuse has, as a corollary, that it does not matter whether the sender or the recipient would have been caused distress or anxiety: a conversation in grossly offensive terms between two racists across a public electronic communications network would render both individuals liable for the offence.

While the status and functions of the recipient (here the offender's MP) is not irrelevant - because the defendant was entitled to make his views about such matters as race and immigration known in strong terms - he could not do so in terms which went beyond the pale of what was tolerable in our society. Article 10 of the ECHR did not protect the defendant because the restriction on free speech imposed by s. 127(1)(a) was directed to a legitimate object and went no further than was necessary in a democratic society to achieve that end.

Click here for the full text of the judgment.

Author: LL

December 2005

B20.5 Meaning of 'Controlled Drug'

The Misuse of Drugs Act 1971 (Amendment) Order 2005 (SI 2005 No. 3178) amends sch. 2, part 3 of the 1971 Act so as to insert the drug ketamine in the list of Class C drugs.

Author: MH

November 2005

B20.22 The Misuse of Drugs Regulations 2001

The Misuse of Drugs and the Misuse of Drugs (Supply to Addicts) (Amendment) Regulations 2005 (SI 2005 No. 2864), regs. 2 to 13 amend the Misuse of Drugs Regulations 2001. Regulation 3 amends the definition of extended formulary nurse prescriber (EFNPs) and the definition of register. Regulation 4 inserts a new reg. 6A(1)(f), enabling certain persons to supply ascorbic acid for the purpose of administering or preparing controlled drugs. Regulation 5 inserts a new reg. 6B, which specifies which controlled drugs EFNPs can prescribe in which circumstances. Regulation 6 substitutes reg. 7(4) and (5), which provides that EFNPs can administer, and persons can administer in accordance with the directions of an EFNP, any drug which EFNPs are permitted to prescribe under reg. 6B so long as it is administered for a purpose for which it may be so prescribed. Regulations 7 and 8 substitute regs. 8(7) and 9(7) and specify which controlled drugs EFNPs can supply in which circumstances. Amendments in regs. 9 to 12 relate to the form of prescriptions and the keeping of records in computerised form. Regulation 13 revokes para. 2 of sch. 5 to the 2001 Regulations, removing any preparation of cocaine containing not more than 0.1% of cocaine from the exception which applies to the prohibition on importation, exportation and possession.

Author: MH

January 2006

B20.22 The Misuse of Drugs Regulations 2001

The Misuse of Drugs (Amendment( (No. 3) Regulations 2005 (SI 2005 No. 3372) amend part 1 of sch. 4 to the principal regulations, which lists some of the drugs which are subject to the record-keeping, information and destruction requirements imposed by regs. 22, 23, 26 and 27, by inserting Ketamine in the list.

Author: MH

May 2006

B20.22 Misuse of Drugs Regulations 2001

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

Author: MH

June 2006

B20.22 The Misuse of Drugs Regulations 2001

The Misuse of Drugs (Amendment No. 2) Regulations 2006 (SI 2006 No. 1450) make a series of amendments relating to prescription forms, record-keeping and registers based on recommendations of the Shipman Inquiry. Regulations 15, 16, 19 and 20 of, and schs. 6 and 8 to, the principal Regulations are amended.

Author: MH

September 2006

B20.22 The Misuse of Drugs Regulations 2001

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

Author: MH

December 2005

B20.26 Supplying or Offering to Supply: Sentencing Guidelines

The Drugs Act 2005 (Commencement No. 3) Order 2005 (SI 2005 No. 3053) brings into force on 1 January 2006, inter alia, s. 1 of the Act (aggravated supply of controlled drug).

Author: MH

November 2005

B20.106 Sentencing Guidelines: Class A Drug Offences

The sentencing guidance previously given in Afonso [2005] 1 Cr App R (S) 560, [2004] EWCA Crim 2342 was 'explained' by the Court of Appeal in Davies and other appeals [2005] EWCA Crim 2437. Rose LJ said:

"What was not expressly said in Afonso and what we now make clear is that the sentence level which was indicated of the order of two to two-and-a-half years' imprisonment was intended for those with no criminal record. Those with significant criminal records, even without prior drugs convictions, do not have the mitigating factor of good character which is, of course, material to the sentencing process. They are therefore likely to receive a somewhat higher sentence. . ."

Sentences of three and a half years (as in Afonso itself) were accordingly held to be appropriate in two cases before the court involving non-retail supply by defendants with significant criminal records.

The court further reiterated that Afonso was never intended to affect the level of sentences applicable to cases involving retail drug supply, and that if what is supplied is represented to be a Class A drug and is intended to be purchased as a Class A drug, but is not in fact a Class A drug (eg it is paracetamol), that will, generally speaking, make very little, if any, difference to the level of sentence which is appropriate.

Click here for the full text of the judgment in Afonso.

Click here for the full text of the judgment in Davies and other appeals.

Author: MH

October 2005

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).

Author: MH

May 2006

B20.108 Sentencing Guidelines: Class C Drugs

The increase in the maximum penalty for the illegal production, importation, etc, of Class C drugs from 5 years' imprisonment to 14 years is equally applicable to all such drugs, and there is nothing to suggest that Parliament intended heavier sentences to be imposed only in cases involving the former class B drug, cannabis: see Parekh [2006] All ER (D) 225 (Apr). A custodial sentence of five years imposed in a case involving the illegal commercial importation of diazepam tablets was accordingly upheld, even though the appellant was not alleged to be the ringleader and had pleaded guilty.

Author: MH

July 2006

B21.9 Offences Involving Hunting with Dogs

In R (Countryside Alliance and others) v Attorney General and others; R (Derwin and others) v Attorney General and others [2006] EWCA Civ 1677, one group of claimants contended that the ban on hunting imposed by the Hunting Act 2004 infringed their right to respect for their personal autonomy their culture/community/lifestyle, their home and their use of that home (ECHR, Article 8). On that basis, they sought a declaration under the Human Rights Act 1998, s. 4, that the Hunting Act is incompatible with the ECHR. A second group of claimants submitted that the ban engaged and infringed two of the free movement provisions contained in the EC Treaty: the free movement of goods (Article 28) and the free movement of services (Article 49).

All claimants argued that that no legislative aim could be derived from the Act; that the defendants had adduced insufficient evidence before the lower court to support the conclusion reached by that court; and that the Divisional Court (see [2005] All ER (D) 482 (Jul)) consciously defined an objective wider than that intended by the legislature.

Dismissing these appeals, the Court of Appeal identified the objective of the Hunting Act as a composite one of preventing or reducing unnecessary suffering to wild mammals, together with the view that causing suffering for sport is unethical, and agreed with the Divisional Court that it was manifest from the available background material that the legislature did frame the Hunting Act with such an ethical sentiment in mind. The appellants' submissions on this question were either misconceived or based upon a misunderstanding of the nature of the enquiry which a court will undertake in determining the objectives of an Act of Parliament.

The specific arguments based on the ECHR and EC Treaty were also rejected, for reasons summarised at paras [184] - [193] of the judgment.

Author: MH

February 2006

B22.2 The Money Laundering Regulations

The Proceeds of Crime Act 2002 and Money Laundering Regulations 2003 (Amendment) Order 2006 (SI 2006 No. 308) includes amendments to the Money Laundering Regulations 2003. In order to give full effect to EU Directive 2001/97/EC, art. 3 amends reg. 7 (internal reporting procedures) so as to extend the persons to whom the defence under that regulation applies to a "relevant professional adviser" and a person who is employed by (or in partnership with) the professional legal adviser or other relevant professional adviser to provide assistance or support.

Author: MH

March 2006

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."

Author: MH

May 2006

B22.5 Offences of Concealment etc.

The Serious Organised Crime and Police Act 2005 (Commencement No. 6 and Appointed Day) Order 2006 (SI 2006 No. 1085) brought into force, on 15 May 2006, s 102 of the Act (money laundering: defence where overseas conduct is legal under local law).

The Proceeds of Crime Act 2002 (Money Laundering: Exceptions to Overseas Conduct Defence) Order 2006 (SI 2006 No. 1070) sets out exceptions to the defence in s. 327(2A). 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 United Kingdom 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.

Author: MH

May 2006

B22.9 Money Laundering Arrangements

The Serious Organised Crime and Police Act 2005 (Commencement No. 6 and Appointed Day) Order 2006 (SI 2006 No. 1085) brought into force, on 15 May 2006, s 102 of the Act (money laundering: defence where overseas conduct is legal under local law).

The Proceeds of Crime Act 2002 (Money Laundering: Exceptions to Overseas Conduct Defence) Order 2006 (SI 2006 No. 1070) sets out exceptions to the defence in s. 328(3). 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 United Kingdom 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.

Author: MH

August 2006

B22.11 Money Laundering Arrangements

The concept of 'suspicion' was examined by the Court of Appeal in Da Silva [2006] EWCA Crim 1654 in the context of an alleged offence under the Criminail Justice Act 1988, s. 93A. Longmore LJ, giving the judgment of the court, said:

It seems to us that the essential element in the word "suspect" and its affiliates, in this context, is that the defendant must think that there is a possibility, which is more than fanciful, that the relevant facts exist. A vague feeling of unease would not suffice. But the statute does not require the suspicion to be "clear" or "firmly grounded and targeted on specific facts", or based upon "reasonable grounds". To require the prosecution to satisfy such criteria as to the strength of the suspicion would, in our view, be putting a gloss on the section.

In K Ltd v National Westminster Bank plc [2006] EWCA Civ 1039 the civil division of the Court of Appeal appears to have adopted the same approach to the Proceeds of Crime Act 2002, s. 328 as Laddie J in Squirrell Ltd v National Westminster Bank plc [2005] EWHC 664 (Ch). The assumption appears to be that a bank etc which acts for a customer despite suspicions as to whether the customer's property is criminal property will become guilty of a money laundering offence, even if it transpires (as in K Ltd) that it is nothing of the kind. But as in Squirrell Ltd, no reference was made to the decision of the House of Lords in Montila [2005] UKHL 50, in which it was held that a conviction for the somewhat similarly worded offence under the Criminal Justice Act 1988, s. 93C(2), required proof that the property in question was in fact (and was not merely suspected to be) the proceeds of criminal conduct. The House of Lords thought that this interpretation was strongly supported by the absence of any defence where the property in question was later proved to be 'clean'. Given that the 2002 Act similarly contains no such defence, the same argument would seem to apply to s. 328. The point did not arise in Da Silva where the properly in question clearly was criminal property.

Author: MH

May 2006

B22.12 Offences of Acquisition, Use or Possession

The Serious Organised Crime and Police Act 2005 (Commencement No. 6 and Appointed Day) Order 2006 (SI 2006 No. 1085) brought into force, on 15 May 2006, s 102 of the Act (money laundering: defence where overseas conduct is legal under local law).

The Proceeds of Crime Act 2002 (Money Laundering: Exceptions to Overseas Conduct Defence) Order 2006 (SI 2006 No. 1070) sets out exceptions to the defence in s. 329(2A). 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 United Kingdom 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.

Author: MH

March 2006

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.

Author: MH

February 2006

B22.17 Failure to Disclose Possible Money Laundering

The Proceeds of Crime Act 2002 and Money Laundering Regulations 2003 (Amendment) Order 2006 (SI 2006 No. 308) includes amendments to the Proceeds of Crime Act 2002, s. 330. In order to give full effect to EU Directive 2001/97/EC, art. 2(2) amends s. 330(6)(b), (9A)(a) and (10) (failure to disclose: regulated sector) to extend the persons to whom the defence applies to a "relevant professional adviser", as defined by s. 330(14), which is inserted by art. 2(5). The amendments made by art. 2(3) and (4) provide a defence for a person who is employed by (or in partnership with) the professional legal adviser or other relevant professional adviser to provide assistance or support.

Author: MH

1 March 2006

B23.5 Immigration - defences

Makuwa [2006] EWCA Crim 175 considers the burden of proof required to establish a defence under of the Immigration and Asylum Act 1999, s. 31(1) and, further, the directions to be given to the jury in respect of them. In this case the defence was raised by the appellant to a charge under the Forgery and Counterfeiting Act1981, s. 3, concerning the use of a false passport to gain entry to the United Kingdom from the Congo. The Court concluded that the burden which the appellant must meet in regard to her status as a refugee is to raise the issue by evidence which the prosecution must then rebut. In respect of the other elements of the defence under s. 31 a legal burden of proof rests upon the appellant. The imposition of a legal burden of proof is a justifiable infringement of the ECHR, Article 6(2). There is a legitimate public interest in maintaining effective immigration control and the infringement is a proportionate way of achieving a proper legal object.

In a case where the Crown disputes a defendant's refugee status, the jury should be instructed that a refugee is a person who has left his own country owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. The jury should be told that a fear is well-founded if there is a serious possibility that the defendant will suffer persecution if returned to his own country. They should be told that the defendant must fear persecution for a Convention reason.

The jury should then be directed that the burden is upon the prosecution to prove that the defendant is not a refugee. If the jury think that the person may be a refugee they should go on to consider the other matters raised in the section. These should be separately identified and the jury should be directed that the defendant must satisfy them on a balance of probabilities. In some cases it may be necessary to give specific directions about certain matters: for example, if the defendant spent time in another safe country on his way to the UK it may be necessary to explain what is meant by coming directly from a country where his life or freedom was threatened. It may be helpful to the jury to give them directions on these matters in writing.

Finally, where the Crown fails at trial to rely on evidence that the defendant passed through a safe country on her way to the UK, the prosecution may not then rely on that fact to support the conviction.

Click here for the full text of the judgment.

Author: LL

December 2005

B23.6 Entering United Kingdom without a Passport, etc

As to the burden of proof in prosecutions under the Asylum and Immigration (Treatment of Claimants etc) Act 2004, s. 2, see Navabi [2005] EWCA Crim 2865, in which it was held that s. 2 must be read as imposing a full legal or persuasive burden of proof on any defendant who seeks to rely on a defence under s. 2(4).

Author: MH

February 2006

B23.6 Entering United Kingdom without Passport etc

Having previously upheld the reverse onus provisions of the Asylum and Immigration (Treatment of Claimants) Act 2004, s. 2, against challenges based on their alleged incompatibility with the ECHR (see [2005] EWCA Crim 2865), the Court of Appeal in Navabi [2006] All ER (D) 18 (Jan) has now certified that this issue raises points of law of general importance that may be fit for possible consideration by the House of Lords.

Author: MH

16 December 2005

B23.14 Immigration - illegal entry

Javaherifard and Miller [2005] EWCA Crim 3231 is a leading case on the construction of the Immigration Act 1971, s. 25. The two defendants were indicted and convicted of four counts contrary to s. 25. Two counts related to facilitating the illegal entry of two Iranians into the UK. Two further counts related to facilitating the same two Iranians unlawfully "being in" the UK. J allegedly concocted the scheme by which the two entered and remained in the UK. M, his wife, assisted the scheme by travelling to Dublin where the two men landed, travelling with them to Northern Ireland by train, occupying a ferry cabin with them to Birkenhead, and approaching officers at Birkenhead. At Birkenhead police officers engaged in anti-terrorism surveillance discovered that the two Iranians were travelling on false Austrian and Swiss passports respectively.

Difficulty arose because at trial the learned recorder, relying on the Immigration Act 1971, s. 11(1) and (2), held that the two had not entered the UK until they presented their passports at Birkenhead. The Crown had proposed to put its case on the footing that the two entered when they crossed the Northern Ireland border by train.

The Court of Appeal held that the recorder erred: s. 11 applies only where a person arrives by boat or aircraft whereas here the illegal immigrants arrived by land from the Irish Republic. Even if the entrants had not already entered the UK, the arrival/entry distinction drawn by the recorder applies only where there is a designated area at a point of entry to which an individual goes and where he remains until dealt with by an immigration officer. If there is no designated area, entry occurs at the point of disembarkation. If there is such an area but, unexpectedly, no immigration officer is present, entry occurs when the person leaves the designated area. This does not mean that everyone who arrives in the UK, whether at a port or in an outwardly conventional manner, postpones entry until he has been seen by an immigration officer. By reason of special provisions for the Common Travel Area (SI 1972 No. 1610) the two Iranians who lacked the requisite visas, became illegal entrants as soon as they crossed the border into Northern Ireland: Naillie [1993] AC 674 was distinguished.

A person can facilitate entry by acts done subsequent to entry. There can be overlap between the offence of facilitating entry and that of facilitating "being in" the UK and unduly technical distinctions between the two offences should be avoided. This will be the case especially where there is a continuous course of conduct on the part of the same people and where the acts are closely related in place and time to the actual entry: Singh [1972] 1 WLR 1600 and see Adams [1996] Crim LR 593 and Eyck [2000] 1 WLR 1389. In this case Miller's acts at Birkenhead certainly facilitated the entrants "being in" the UK. There is a statutory concept of "being in" the UK in breach of immigration law which does not require any further breach of immigration law. The Crown could have put its case on the footing that the presentation of a false passport at Birkenhead was in itself a deceitful attempt to avoid enforcement action by misrepresentation of status and in this the appellants were complicit.

Those who knowingly assist an unlawful immigrant to remain in the UK commit the offence of facilitating "being in" the UK, but this does not apply to NASS (National Asylum Support Service) assistance or to the provision of legal advice. Arguments drawn from provisions relating to asylum seekers are irrelevant to the s. 25 offence whether or not the illegal entrants later seek asylum.

Click here for the full judgment.

Author: LL

December 2005

B23.26 Trafficking for Sexual Exploitation: Sentencing

In Maka [2005] All ER (D) 219 (Nov), 16 November 2005, CA, the defendant pleaded guilty to two counts of trafficking within the United Kingdom for sexual exploitation contrary to the Sexual Offences Act 2003, s. 58(1) and was also convicted on two other such counts, together with one of trafficking into the United Kingdom for sexual exploitation contrary to s. 57(1). The offences all involved a 15-year-old Lithuanian girl, who was tricked into travelling from Lithuania to the United Kingdom by the promise of well-paid work, and then repeatedly sold by the defendant into rape and prostitution. Consecutive sentences totalling 18 years' imprisonment were upheld on appeal. The total sentence was described as 'appropriately severe' because deterrence to others in Lithuania or other parts of Europe, as well as those in the United Kingdom who took part in such activities, was a highly material consideration.

Author: MH

March 2006

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).

Author: MH

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