Companion Website

D1.2 Power to Stop and Search

The Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2005 (SI 2005 No. 3503) appoints 1 January 2006 as the date on which the revised PACE Codes A to F and new Code G (exercise by police officers of statutory powers of arrest) take effect. The revised Code A includes changes covering the power to search for a firework, and indication that a person's religion cannot be a reasonable ground to search, a change in respect of recording "stop-only" encounters and a new annex distinguishing between a constable and a community support officer's powers.

Author: MH

14 October 2004

D1.4; B8.5 Arrest and Criminal Damage

Fiak [2005] EWCA Crim 2381 represents a pragmatic approach to the meaning of arrest under s. 4(6) of the Road Traffic Act 1988. It also restates a broad definition of damage for the purposes of the Criminal Damage Act 1971.

In Fiak the defendant was seen sitting in his car, close to his home, leaning from the door and vomiting into the street. Police officers, understandably, thought that he was under the influence of alcohol. Mr. Fiak asserted, however, that had not driven his car, that he had been home all night, and that, having consumed alcohol at home, he went for a walk to clear his head. PC Smith sought to check his story by speaking to Mr. Fiak's wife. Mr. Fiak, despite being told to stay where he was, sought to enter his home where he believed that he would be immune from arrest. Mr. Fiak's wife said that she had not seen him that night. Mr. Fiak, after a struggle in which he assaulted P.C. Smith, was subdued and was then formally arrested and told in suitable language why he had been arrested. Later, in cells, Mr. Fiak jammed the cell toilet with a clean blanket with which he had been issued so causing the water to overflow and flood his and other cells.

Mr. Fiak's contention that he was unlawfully arrested was dismissed by the Court of Appeal. Judge LJ suggested that Mr. Fiak might have been considered to be arrested when he was told, for reasons of which he was aware, that the police proposed to check his story. He was at any rate properly arrested when, having been subdued, it became practicable to pronounce formal words of arrest. Arrest can thus be considered to have been a continuous process from the moment of detainer to the pronunciation of the formal words of arrest.

This appears to make pragmatic good sense. It enables police to verify a story whilst retaining control of a difficult situation. From the perspective of an innocent person it may be thought preferable to verify his story before formally arresting him. Even if there is no legal foundation for the initial detention of the defendant, the actual arrest would seem to be lawful for the purposes of the RTA. For the purposes of the offence of assault with intent to avoid or prevent a lawful arrest, the analysis is more difficult. Unless the initial detainer was part of a process of lawful arrest, the detainer would not be legal. The Court adopts an expedient which is not necessary since an initial arrest does not preclude the verification of a story, nor need it be persisted with if the arrested person's explanation is found to be true. There is a danger that expansive doctrines of the sort adopted by the Court here may lead a blurring of doctrine and to slackness in police procedure on the part of police officers who may conclude that what they think to be reasonable is for that reason lawful.

In respect of criminal damage the Court follows authorities which hold that damage need not be permanent. It followed that soaking the blanket and flooding cells so that it and they could not immediately be used amounted to criminal damage following Morphitis [1990] Crim LR 48 and Whiteley (1991) 93 Cr App R 25.

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

Author: LL

September 2006

D1.6 Power to Stop and Search

The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) Order 2006 (SI 2006 No. 2165) brings into operation, on 31 August 2006, a revision of para. 4 of Code A (exercise of statutory powers of stop and search and requirements to record public encounters). The revision pertains to the recording requirements enables constables of the British Transport Police operating from certain specified locations to provide an electronic receipt rather than a full record when they undertake a stop or a stop and search. A full record will be made available to the person at a later time. In consequence of the revision, the applicable Notes for Guidance are revised and a new Annex D (use of an electronic receipt as an interim record of a stop or stop and search) is inserted.

Author: MH

D1.12 Powers of Arrest without Warrant

The Serious Organised Crime and Police Act 2005 (Commencement No. 4 and Transitory Provision) Order 2005 (SI 2005 No. 3495) brings into force, on 1 January 2006, inter alia ss. 110 and 111 of and sch. 7 to the Act. These provisions concern powers of arrest and are fully described in the main work. The repeal of the Police and Criminal Evidence Act 1984, s. 25 and sch. 1A are also brought into force by this Order.

Author: MH

D1.20 Detention and Treatment of Suspects

The Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2005 (SI 2005 No. 3503) appoints 1 January 2006 as the date on which the revised PACE Codes A to F and new Code G (exercise by police officers of statutory powers of arrest) take effect. The revised Code C includes changes to take account of new powers provided by the Serious Organised Crime and Police Act 2005 to test for drugs and search for drugs using x-rays and ultrasound.

Author: MH

D1.20 Detention and Treatment of Suspects

The Police and Criminal Evidence Act 1984 (Code of Practice C and Code of Practice H) Order 2006 (SI 2006 No. 1938) provides for a revised Code C and a new Code H. The new codes may be accessed in full by clicking here. The revised Code C is altered so that persons detained under the Terrorsit Act 2000, s. 41 and sch. 8 are no longer covered by it. Code H covers persons so detained. The provisions of Code H are based on, and closely follow, those of Code C but several material differences apply.

Author: MH

December 2005

D1.38 Strip and Intimate Searches

The Drugs Act 2005 (Commencement No. 3) Order 2005 (SI 2005 No. 3053) brings into force on 1 January 2006, inter alia, s. 3, which amends the Police and Criminal Evidence Act 1984, s. 55 in relation to drug offence searches, and s. 5, which introduces the new s. 55A of the 1984 Act on the use of X-rays and ultrasound scans for identifying swallowed Class A drugs.

Author: MH

D1.39 Entry under Warrant

The Serious Organised Crime and Police Act 2005 (Commencement No. 4 and Transitory Provision) Order 2005 (SI 2005 No. 3495) brings into force, on 1 January 2006, inter alia ss. 113 and 114(1) to (8) of to the Act. These provisions concern search warrants and are fully described in the main work.

The Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2005 (SI 2005 No. 3503) appoints 1 January 2006 as the date on which the revised PACE Codes A to F and new Code G (exercise by police officers of statutory powers of arrest) take effect. The main changes to Code B reflect the changes made by the Serious Organised Crime and Police Act 2005 relating to multiple premises warrants, all premises warrants and warrants permitting multiple entries.

Author: MH

D1.45 Entry under Warrant: Safeguards

The Serious Organised Crime and Police Act 2005 (Amendment) Order 2005 (SI 2005 No. 3496) amends provisions of the 2005 Act and provisions of the Police Act 1997 and the Police and Criminal Evidence Act 1984 which are prospectively inserted by it. In particular, ss. 15 and 16 of the 1984 Act are amended to correct mistakes arising from sloppy drafting of the 2005 Act.

Author: MH

21 Decmeber 2005

D1.46 Entry on premises

R (Fullard and Roalfe) v Woking Magistrates' Court [2005] EWHC 2922 (Admin) concerns the right of police to enter and remain on premises to carry out investigations. This was a case in which officers sought to interview a driver concerning a damage-only motor accident. One officer followed a drunken person, who may or may not have been the driver, onto his driveway. There followed abusive language on the part of the owner, who told the officer to leave and immediately assaulted him.

The case contains two significant propositions. The first is that such a situation as this does not fall within the Police and Criminal Evidence Act 1984, s. 17(1)(e) (power of entry to effect arrest in order to protect life and limb or the destruction of property). It was suggested that it may fall within s. 17(6) (entry to prevent breach of the peace), though that, with respect, seems doubtful. The second is that where the understanding of the owner of property and the would-be entrant conflict as to whether permission to enter has been revoked, the question whether the permission has been revoked depends upon whether an objective bystander would conclude that it had been. The Court leaves on one side the situation where there is undoubtedly a request to leave that the trespasser does not understand.

The interpretation of abusive words is for the justices. It must follow that, save in a case where the justices have manifestly erred, their assessment of what such words meant in the particular circumstances must prevail.

Click here for the full text of the judgment.

Author: LL

D1.49 Surveillance of Premises

In Rosenberg [2006] EWCA Crim 6, the prosecution were permitted to introduce, as part of their evidence against R, video-recordings made by R's neighbours, which apparently showing R to be engaged in various drug-dealing activities. It was objected that the recordings involved the unauthorised use of covert and intrusive devices and thus infringed the Regulation of Investigatory Powers Act 2000 and the ECHR, Article 8; and that the evidence in question ought therefore to have been excluded under the Police and Criminal Evidence Act s 78.

Dismissing R's appeal, it was held that the surveillance had not been covert, within the meaning of the Regulation of Investigatory Powers Act 2000, s. 26(9), because the presence of the camera had been obvious and R had indeed been fully aware of it. Moreover, the surveillance had neither been carried out by the police nor carried out with their encouragement. The police had warned the neighbours that their activities might infringe Article 8, but that did not mean the prosecution could not use evidence obtained by means of that surveillance.

Author: MH

13 March 2006

D1.50 Terrorism: stop and search

In R (Gillan) v Metropolitan Police Commissioner [2006] UKHL 12, (2006) The Times, 9 March 2006 the House of Lords upholds the powers of stop and search in the Terrorism Act 2000, ss. 44 to 47 and rejects an argument that they contravene the ECHR.

Section 44(2) of the Terrorism Act 2000 provides that an authorisation may be given to stop a pedestrian in a specified area or place if the high ranking police officer giving it considers that such an authorisation is expedient for the prevention of acts of terrorism. In this instance the specified area was the Metropolitan Police District. Since s. 44 came into force there had been a succession of authorisations and confirmations. A constable acting under the authorised powers did not need to have reasonable grounds for suspecting the presence of an article to stop and search.

In brief their lordships hold:

The decision maker need not have reasonable grounds for considering that the powers were necessary or suitable; the word "expedient" bears a distinct meaning, and safeguards were written into the Act.
An authorisation might thus be given only if the person giving it considered that the powers would be of significant practical utility in seeking to prevent acts of terrorism.
Although there had been a succession of authorisations and confirmations, there was no evidence to suggest that these had been the result of a routine bureaucratic exercise. On the evidence they were a reasonable response to a continued threat. They do not contravene the statute.
The geographical spread of the authorisations was justified on the evidence which was that terrorist targets were spread throughout London and that it would be impracticable to differentiate between some parts of the district and others. The applicants offered no evidence to the contrary.
There was no contravention of the ECHR, Article 5 (right to liberty and security). Stop and search is a brief procedure. The person searched is not handcuffed, confined or removed to a different place, nor is he confined or kept in custody. There is no deprivation of liberty.
A superficial search of the person and an opening of bags do not contravene Article 8 (right to private life).
Stop and search properly exercised does not constitute an interference with the right to free speech and so does not contravene Articles 10 or 11.

The issues of random and of discriminatory search were adumbrated. A search based on a police officer's trained instinct cannot, according to Lords Brown and Scott, be said to be random. In determining who to search, police officers are entitled to take account of the particular community, if any, from whom the threat is considered to emanate but, for example, the mere fact that a person is of Asian origin is not, per Lord Hope and Lord Brown, a legitimate reason to stop and search him. A person cannot be profiled simply by reason of his ethnicity. It follows that the power requires the person to have conducted himself in such a way as to arouse suspicion that he may pose a terrorist threat.

Click here for full text of the judgment.

Author: LL

May 2006

D1.50 Terrorist Investigations

In Re MB [2006] EWHC 1000 (Admin), Sullivan J examined the procedures established by the Prevention of Terrorism Act 2005, s 3, relating to the supervision by the High Court of control orders made by the Home Secretary under s 2 of that Act. Sullivan J ruled that the s 3 procedure was 'conspicuously unfair' and was accordingly incompatible with the right to a fair hearing that is guaranteed under the ECHR, Article 6(1). A declaration to that effect was made pursuant to the Human Rights Act 1998, s 4.

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

Author: MH

July 2006

D1.50 Terrorist Investigations

As noted in the May update, the Government's attempts to impose control orders on terrorist suspects suffered a major setback in Re MB [2006] EWHC 1000 (Admin), in which Sullivan J examined the procedures established by the Prevention of Terrorism Act 2005, s. 3, relating to the supervision by the High Court of control orders made by the Home Secretary under s. 2 of that Act. Sullivan J ruled that the s. 3 procedure was 'conspicuously unfair' and was accordingly incompatible with the right to a fair hearing that is guaranteed under the ECHR, Article 6(1). A declaration to that effect was made pursuant to the Human Rights Act 1998, s. 4.

In Re JJ (control orders) [2006] EWHC 1623 (Admin), Sullivan J upheld a further challenge, this time to the content of orders imposed under s. 2 on asylum seekers who had been detained on national security grounds. The orders required the suspects to be confined for 18 hours per day in designated domestic residences, which would be subject to random searches at any time. They would be electronically tagged, and allowed only limited and controlled contact with other persons.

Sullivan J ruled that the cumulative impact of these orders were such as to deprive the persons in question of their liberty, contrary to the ECHR, Article 5(1). The orders were accordingly unlawful and would be quashed (although the quashing order was stayed, pending an appeal).

Author: MH

D1.50 Terrorist Investigations

The Terrorism Act 2006 (Commencement No. 2) Order 2006 (SI 2006 No. 1936) brought the remaining provisions of the Act (principally ss. 23 to 25 (detention of terrorist suspects)) into force on 17 July 2006.

Author: MH

D1.62 Formal Caution

The ruling of the Divisional Court in Jones v Whalley [2005] EWHC 931 (Admin) has been reversed by the House of Lords in Jones v Whalley [2006] UKHL 41, on the ground that it would indeed be an abuse of process for a private prosecution to be commenced against a defendant who had agreed to be cautioned by the police on the basis of an express written assurance that, if he did so, "he would not have to go before a criminal court in connection with that matter although a record would be kept of the warning"

Lord Rodger said (at [25]):

It seems to me that allowing private prosecutions to proceed, despite an assurance that the offender would not have to go to court, would tend to undermine not only the non-statutory system of cautions, but also the schemes for cautioning young offenders and adult offenders which Parliament has endorsed in the Crime and Disorder Act 1998 and the Criminal Justice Act 2003. A court is entitled to ensure that its process is not misused in this way.

On the other hand, the Appellate Committee declined to rule on the wider question whether, even in the absence of such an assurance, a caution should still preclude any private prosecution. Hayter v L [1998] 1 WLR 854 suggests not, but without hearing full argument on the issue their lordships declined to resolve it. As Lord Brown admitted (at [36]), this will create difficulty and uncertainty for the police when it comes to explaining the effect of a caution:

The difficulty, of course, in deciding the present appeal on the narrow ground is that, until the wider issue is resolved by further litigation or, preferably perhaps, by legislation, it remains unclear whether, when administering a caution, the police should warn the offenders, as in Hayter v L . . . that the caution "did not preclude an aggrieved party from bringing criminal proceedings or a civil action" or, as here, should assure them of immunity from criminal process. To say nothing about the consequences would obviously be unhelpful. Perhaps the best and safest course would be to give the Hayter warning but in modified terms, stating that a caution may not preclude a private prosecution and will not preclude a civil action.

Author: MH

11 November 2005

D1.66; B11.156; 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

December 2005

D1.78 Time Limits

The Magistrates' Courts Act 1980, s 127 does not have any bearing on the admissibility of evidence in proceedings under the Crime and Disorder Act 1998, s 1 (applications for ASBOs): R (Chief Constable of West Mercia Constabulary) v Boorman [2005] EWHC 2559 (Admin).

Author: MH

2 December 2005

D1.79 State Immunity

In Alamieyeseigha v CPS [2005] EWHC 2704 (Admin) the Court considered whether the political head of government of a state forming a constituent part of a federal State could assert a claim to State immunity in respect of charges brought against him in England and Wales. Both the Secretary of State and the Government of Nigeria certified that Bayelsa State, a constituent State of the Federation of Nigeria, of which the applicant was head of government, did not enjoy state immunity and was not to be regarded as a person within international law for the purpose. The Court, whilst not going so far as to assert that a constituent unit of a federal state could never be recognised as competent to carry out and as carrying out diplomatic functions, treats the certificate of the Secretary of State as conclusive of the issue. If the Secretary of State does not consider that a particular entity is to be recognised as a state for the purposes of enjoying state immunity and if, additionally, that state is not involved in international relations, it cannot be entitled to state immunity. Only rarely will a constituent part of a federal state be regarded as enjoying state immunity.

It is, with respect, not clear whether the court meant to suggest that the Secretary of State's certificate can be challenged by a claimant on the basis that in fact a constituent unit of a federal system is for some purposes regarded as having some status in international relations. Traditionally, no such challenge to a certificate could be mounted.

In this case the Secretary of State certified that Bayelsa State was not entitled to state immunity. In addition, the Nigerian Constitution and decisions of the Nigerian Supreme Court make clear that the Nigerian states have no legal powers to engage in foreign affairs.

Mellenger v New Brunswick Development Corporation [1971] 1 WLR 604 was cited in aid of the applicant's case. Collins J was inclined to regard that case as possibly having been wrongly decided on the point.

His lordship's doubts are, with respect, well-founded: the history of claims by the Canadian provinces to state status is a vexed one and the Federal government has never conceded that they enjoy full autonomy in international relations.

Click here for the full judgment.

Author: LL

4 July 2006

D2.47; D6.44 Open Justice: Bail Application Procedure in the Crown Court

Malik v Central Criminal Court and Crown Prosecution Service [2006] EWHC 1539 holds that in principle an application for bail in the Crown Court under s. 81G of the Supreme Court Act 1981 should be held in public. The starting point, hallowed in English case law as well as in decisions of the ECHR, is that hearings should be held in public unless it is necessary in the interests of justice to hold them in private. The principal purpose of requiring a public hearing is to ensure that persons are not arbitrarily deprived of their liberty. A public hearing may be held in open court or in chambers. The latter course may be necessary for example where time is short and it is not convenient to schedule a hearing in court. In such cases reporting restrictions may not be imposed. In some cases a private hearing may be required in the interests of justice itself.

While Malik foreshadows a change in procedure, the change does not mean that in practice all cases must be listed for hearing in public. There will be cases where a listing for hearing in private is appropriate. If a different course is to be sought advocates will have to respond promptly, with reasons.

The defendant need not be present at a hearing in public. CrimPR 2005, r. 19.18 lists reasons for not producing the defendant. The Court thus states:

If, as was the case here, the defendant has legal representation one can see sound pragmatic reasons why he should not have a right to be "produced". Producing a defendant at court for a bail application can be and often is inconvenient and expensive. It is by no means uncommon for defendants who are in custody to be held at prisons a considerable distance away from the court where they are to be tried. Moreover, the increasing use of video links between the court and the prison where the defendant is detained effectively remove any disadvantage to the defendant by reason of his not being physically present when the application for bail is heard.

Author: LL

D2.50 Sitting in Camera

In R v Central Criminal Court, ex p A and others [2006] EWCA Crim 4, the Court of Appeal confirmed that, in the case of an appeal against an order made pursuant to Criminal Procedure Rules 2005, r. 16.10, the court has no discretion under r. 67.2 to hold an oral hearing, and opined that that this lack of discretion involved no conflict with the ECHR.

Author: MH

September 2005

D2.52 Freedom of media to report court proceedings

A Local Authority v PD and another (a child) (identification: restriction on publication) [2005] EWHC 1832 (Fam) involved a call for an accused in a particularly grisly murder case to be identified only by an initial, based on the effect on the child of the accused (who, it was accepted, would be identified once the accused was named). Sir Mark Potter P stated:

The burden of proving the case for grant of an injunction always lies upon the applicant. In the special case of an injunction contra mundum, and in particular one which restrains the press from exercising its right unrestrainedly to report criminal proceedings, the burden is a heavy one. The necessity is to show unusual and exceptional circumstances.

It was not considered that the circumstances of the instant case were sufficient to justify a restriction on free reporting.

Author: MH

September 2006

D2.64 Abuse of Process: Power to Stay Proceedings

In SL [2006] EWCA Crim 1902, the Court of Appeal held that it is neither an abuse of process nor unreasonable for the Crown to bring criminal proceedings against a parent for the death of a child where the family court, in care proceedings relating to another child of the family, has not attributed blame to one parent as against the other. A child, Ethan, was found dead in circumstances which precluded attribution of death to natural causes. In care proceedings relating to a surviving child, Jamie, Hedley J did not find that either the father or the mother was responsible for the death of the child. There was, however, evidence that pointed to the father as the parent responsible. The Crown brought proceedings against him and he was convicted of manslaughter. At trial before Beatson J, it was argued that it was an abuse of process for the criminal trial to take place or, in the alternative, unreasonable for such proceedings to be brought having regard to the decision in the care proceedings. The appellant argued that his conviction for manslaughter was inconsistent with the conclusion of Hedley J that he could not say, in the care proceedings, whether Ethan's death was homicide or if it was that it was the appellant, rather than his partner, who was responsible and that this inconsistency was an affront to public justice.

The Court of Appeal, following a careful review of the authorities, concluded that Beatson J had been correct to allow the prosecution to proceed. The decision in the care proceedings was not and could not be a final determination of the criminal proceedings. It could not give rise to double jeopardy or issue estoppel. Even had Hedley J invited the Crown to attend the care proceedings as an interested party and had said (as he did not) that he intended his decision finally to decide the outcome of all proceedings involving the appellant, such observations would not bind the criminal court. The Crown was entitled not to accept Hedley J's reservations as to whether Ethan's death was a homicide and, having reflected on Hedley J's judgment and the public interest test for prosecution, to bring proceedings for manslaughter. The ultimate responsibility for bringing criminal proceedings lies on the Crown. Its decision to do so could not amount to an affront to public justice. The Court did state however (at [64]) that the Crown may be required by the trial judge to provide an explanation of its decision to bring proceedings.

The Court went on to address the desirability of avoiding problems arising from contemporaneous civil and criminal proceedings in respect of the same matter. The Court states (at [73]):

We emphasise however, that because procedural and evidential difficulties can arise when there are in existence parallel care proceedings in respect of a child and criminal proceedings against a person connected with that child in respect of a serious offence against the child (or any person connected with the child), it is essential that there should be close liaison between the local Social Services Authority conducting the care proceedings and the Crown Prosecution Service. Wherever possible, linked criminal and care directions hearings should take place as the cases progress.

Author: LL

D3.3 Case Management

The President of the Queen's Bench Division has issued a protocol which applies to all terrorism cases and is essentially a required procedure for case management in all such cases. A pdf version of the protocol is available here.

Author: MH

15 May 2006

D3.3 Case Management: Written Submissions

The Court of Appeal in K [2006] EWCA Crim 2764, [2006] 2 All ER 552, (2006) The Times, 12 May 2006 held that a judge's new case management powers under the Criminal Procedure Rules 2005 (SI 2005 No. 384) permit him to deal with preliminary matters exclusively by written submissions limited to a length specified by him. He is not bound to allow oral submissions and to put a time a time-limit on them. The necessary public element of any hearing will be sufficiently achieved if the defendants and representatives of the media in court are supplied with copies of written submissions if they wish to see them. No particular method of approach is prescribed because case-management decisions are case specific.

Author: LL

21 September 2006

D5.4 The Decision to Issue a Summons - private prosecution

R (Charlson) v Guildford Magistrates' Court & Ors [2006] EWHC 2318 (Admin) considers what the role of magistrates should be when considering an application for a summons for private prosecution in circumstances where the CPS had already brought and discontinued proceedings for the same matter. The claimant's three-year-old son was struck and killed on a pelican crossing by a car allegedly driven by the interested party. The CPS issued a summons against the interested party for driving without due care and attention. The coroner declined to make any findings of fact as to the state of the crossing at the time of the incident and refused to decide any issue of criminal liability. The CPS then discontinued proceedings. Solicitors for the claimant then laid an information and applied for a summons to Guildford Magistrates' Court. In brief, Guildford Magistrates' Court refused to issue a summons, and South-West Magistrates' Court withdrew a summons which it had issued.

The Court holds that the following principles apply to the issue of a summons in circumstances where the CPS has discontinued proceedings. First, private prosecutors are not bound to apply the Code for Crown Prosecutors when deciding whether to issue proceedings, nor do the courts apply the evidential sufficiency test. A private prosecution does not have to satisfy either of these tests. Secondly, there is no rule that when the CPS has already laid an information in respect of the same matter the issue of a summons will be issued only where there is apparent bad faith on the part of the private prosecutor. Tower Bridge Magistrates' Court, ex parte Chaudry [1994] QB 340, which has been taken to state the contrary, is distinguishable as a case of potentially concurrent prosecutions in which case it would be oppressive for the defendant to face two prosecutions). In those circumstances the magistrates should be slow to issue a summons on behalf of the private prosecutor unless there was apparent bad faith on the part of the CPS. It may be suggested that such a case could arise where the CPS proposed to bring charges which were much less severe than the facts in issue apparently warranted.

In a case where the CPS has brought and discontinued proceedings, the magistrates should ascertain that the offence to be charged is known to the law, whether the ingredients of the offence are prima facie present, that the issue of a summons is not time-barred, that the court has jurisdiction, that the informant has the necessary authority to prosecute and any other relevant facts. Where the CPS has already brought a prosecution which is still proceeding, the magistrate should be slow, in the absence of special circumstances, to issue a summons for a private prosecution. To this one should add that where the proposed defendant has been cautioned in terms that he would not be prosecuted for the offence if he agreed to be cautioned, no summons should issue (Jones v Whalley [2006] UKHL 41).

In the event, the decisions in the two magistrates' courts were quashed. Passages in Stone's Justices Manual 2005, para. 1422 (the same passage appears in the 2006 edition) and in Archbold 2006, at para. 1-259 should not be relied on.

Click here for the full text of the judgment.

Author: MH

D6.10 No Bail for Homicide or Rape if Previous Conviction

The ruling of the Divisional Court in R(O) v Crown Court at Harrow [2003] EWHC 868 (Admin) has been upheld by the House of Lords: R(O) v Crown Court at Harrow [2006] UKHL 42. Lord Brown concluded that the Criminal Justice and Public Order Act 1994, s. 25:

should be construed and applied essentially as a guide to the proper operation of the Bail Act in those cases to which it applies. Additionally in those cases it operates to disapply the ordinary requirement under the 1987 Regulations that bail be granted automatically to anyone whose custody time limit has expired. Thus applied it is compatible with [the ECHR] article 5(3).

In respect of the burden of proof issue that divided the Divisional Court, Lord Brown said:

Whether or not, strictly speaking, section 25 needs to be read down to achieve the agreed result is a question of little moment. I myself, however, have a mild preference for Hooper J's approach. Like him I read the section as placing a burden on the section 25 defendant. He has to rebut a presumption and if he fails to do so is to be denied bail. True it is . . that in the vast majority of cases the court will reach a clear view one way or the other whether the conditions for withholding bail specified by schedule 1 to the Bail Act are satisfied. But just occasionally the court will be left unsure as to whether the defendant should be released on bail - the only situation in which the burden of proof assumes any relevance - and in my judgment bail would then have to be granted. That must be the default position. Section 25 should in my judgment be read down to make that plain.

Author: MH

July 2006

D6.44 Procedure for Bail Applications in the Crown Court

While Malik foreshadows a change in procedure, the change does not mean that in practice all cases must be listed for hearing in public. There will be cases where a listing for hearing in private is appropriate. If a different course is to be sought advocates will have to respond promptly, with reasons.

The defendant need not be present at a hearing in public. The CrimPR 2005, r 19.18 lists reasons for not producing the defendant. The Court thus states:

Author: LL

September 2006

D6.44 General Discretionary Requirements Imposable

Home Office Circular 25/2006 provides detailed advice about the procedures that will be followed when courts decide that an adult defendant should be subject to electronic monitoring, or 'tagging' whilst on bail. Tagging is available as a condition of bail in support of a curfew condition. It states 'The intention of the Home Secretary in making tagging more available is that it should be used as an alternative to remand in custody.' Its implementation date is 1 September 2006.

Author: MH

D7.2 Civil Procedures: Recovery Orders and Taxation

The scope and application of civil procedures for the recovery of criminal property was examined by Sullivan J in Director of the Assets Recovery Agency v Green and others [2005] All ER (D) 261 (Dec). The issue in question was that of what exactly must be proved before a recovery order can properly be made.

By the Proceeds of Crime Act 2002, s. 241(3), the court must decide on a balance of probabilities whether it is proved - (a) that any matters alleged to constitute unlawful conduct have occurred, or (b) that any person intended to use any cash in unlawful conduct.

In civil proceedings for a recovery order under part 5 of the 2002 Act it is not necessary to allege or prove the commission of any specific criminal offence, but it is necessary to set out and prove the matters that are alleged to constitute the particular kind or kinds of unlawful conduct by or in return for which the property in question is alleged to have been obtained. A claim for civil recovery cannot be sustained solely upon the basis that a defendant has no identifiable lawful income to explain his lifestyle and purchases. If Parliament had intended that a claimant should be able to recover property simply by persuading the court that it must have been obtained by or in return for some unspecified unlawful conduct, it would have said so.

Author: MH

July 2006

D7.3 Magistrates' Court: Cash Seizure and Forfeiture

The Proceeds of Crime (Recovery of Cash in Summary Proceedings: minimum Amount) Order 2006 (SI 2006 No. 1699) reduces the minimum amount for the purposes of the exercise of the search powers under the Proceeds of Crime Act 2002, s. 289, from £5,000 to £1,000.

Author: MH

December 2005

D7.13 Restraint Orders

In Re S (application under s 41 of the Proceeds of Crime Act 2002) [2005] EWCA Crim 2919, the Court of Appeal held that, where there was a good arguable case that money in one person's bank account represents all or part of a benefit obtained by another person (the alleged offender), that money is liable to restraint until a confiscation order is made. No enforceable right to the money on the part of the alleged offender need be established.

The court certified that a point of law of general public importance was involved in the decision, namely, whether property which had been provided by a defendant (as defined by the Proceeds of Crime Act 2002, s 88(3)) to another in pursuance of a fraud, where the defendant could not sue to recover their property from that other, could none the less be capable of comprising realisable property of the defendant for the purposes of part 2 of the Act.

Author: MH

D8.1 Disclosure: General

A disclosure protocol has been published by the Court Service. It is concerned with the management of issues relating to the disclosure of unused material. The status of the protocol is unclear; it was prepared by a team led by two leading judges. A pdf version of the protocol is available here.

Author: MH

May 2006

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

Click here

Author: MH

7 October 2005

D8.3 Disclosure: Prosecution

Stephenson [2005] EWCA Crim 1778 deals with the obligation of the prosecution to bring material disclosed to the defence before the court. In this case the honesty of prosecution witnesses in identifying the defendants was a significant issue. The prosecution prepared a Disclosure Notice which rehearsed intelligence suggesting that prosecution witnesses were significantly involved in drug-related offences. The prosecution did not, however, place the material before the court and counsel, in his closing speech, sought to buttress the credibility of his witnesses.

The Court of Appeal held that the Crown was under a duty to place the information contained in the Disclosure Notice before the trial court. The defence were entitled to have the material placed before the jury before making any decision as to how to conduct their case. In the light of the Criminal Evidence Act 1898 and the effect of challenges to the integrity of witnesses coming from the defence, the material should come before the court as a concession by the Crown.

Author: LL

November 2005

D8.4 Defence Disclosure

As to the content of a defence statement, the observation of the Court of Appeal in Bryant [2005] EWCA Crim 2079 may be worth noting. Judge LJ said:

"We note that the defence case statement was woefully inadequate. It consisted of a general denial of the counts in the indictment, accompanied by the sentence "The defendant takes issue with any witness purporting to give evidence contrary to his denials". That sort of observation is not worth the paper it is written on. It is not the purpose of a defence case statement.'

Click here for the judgment in Bryant.

Author: MH

D8.6 Review by the Court

Material in the hands of the company which manufactures Intoximeter machines used by police forces in drink-driving cases is not 'prosecution material' within the meaning of the Criminal Procedure and Investigations Act 1996, s. 8(3) and (4) and therefore cannot be the subject of an order for disclosure under s. 8(2): DPP v Wood [2005] EWHC 2986 (Admin).

Author: MH

D8.11 Third Party Disclosure

In R (B) v Stafford Combined Court [2006] EWHC 1645 (Admin) the Divisional Court found it, "quite unacceptable" that a vulnerable 14-year-old schoolgirl (TB), who was a prosecution witness in the impending trial, was brought to court at short notice, without representation or support, to be faced personally with an apparent choice between agreeing to the disclosure of her psychiatric records or delaying a trial which was bound to cause her concern and stress. She was known to have attempted suicide and was the victim of alleged sexual abuse. Medical records, in particular psychiatric records, are confidential between the medical practitioner and the patient. The patient undoubtedly has a right of privacy within the ECHR, Article 8.

By the Criminal Procedure (Attendance of Witnesses) Act 1965, s. 2(7) (see the main text at D13.29) an application for a witness summons has to be made in accordance with the Criminal Procedure Rules. The CrimPR, r. 28 stipulates the form and content of the application and provides that a copy of it and the supporting affidavit should be served on the person to whom it is directed at the same time as it is served on the court officer. The person to whom it is directed may indicate if he wishes to make representations at a hearing. If he does so, the court has to fix a hearing. The original application in the present case requested a summons directed to the relevant NHS Trust to produce TB's medical records.

The Divisional Court noted that this revealed a defect in the existing rules. May LJ said:

Surprisingly the Rules do not require service of an application such as that in the present case on the very person whose confidence would be broken by their production - not least in the present case their production to a defendant who was alleged to have abused TB sexually.

Nevertheless, CrimPR, r. 1 provides that the overriding objective is that criminal cases are dealt with justly. This includes respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case. By r. 1.3, the court must further the overriding objective when it exercises any power given to it by legislation, including the rules, and when it applies any practice direction or interprets any rule or practice direction.

May LJ concluded (at [25]):

Procedural fairness in the light of Article 8 undoubtedly required in the present case that TB should have been given notice of the application for the witness summons, and given the opportunity to make representations before the order was made. Since the rules did not require this of the person applying for the summons, the requirement was on the court as a public authority, not on W, the defendant. TB was not given due notice or that opportunity, so the interference with her rights was not capable of being necessary within Article 8(2). Her rights were infringed and the court acted unlawfully in a way which was incompatible with her Convention Rights.

The reform of r. 28 is currently under consideration by the Rules Committee. In the court's view, the proposals currently put forward might not be adequate to ensure the future protection of claimants such as TB, and may need reconsideration.

Author: MH

July 2006

D8.12 Disclosure Prior to Implementation of the Criminal Justice Act 2003

In Murphy v DPP [2006] EWHC 1753 (Admin) the Divisional Court ruled that a defendant's right to secondary disclosure was not automatically forfeited by his own failure to serve his defence statement in time. Parliament could not have intended that a defendant should be penalised in that way for what might only have been a short delay on his part.

As to sanctions for failures under the Criminal Procedure and Investigations Act 1996, s. 11 (as amended by the Criminal Justice Act 2003), see the main text at D8.9.

Author: MH

March 2006

D9.3 Sending Cases to the Crown Court under the Crime and Disorder Act, s 51

In R (Bentham) v Governor of HM Prison Wandsworth [2006] EWHC 121 (Admin) the Divisional Court were required to consider whether a notice of transfer complied with the requirements of the Crime and Disorder Act 1998, s. 51(7) (now s. 51D(1)) where it stated in the box provided for "Offences":

"Conspiracy (both defs); Supply drugs x 3; Drive disq (Herridge)"

The court held that despite its evident lack of precision, the notice (which was in fact supplemented by (but not cross-referenced to) other documentation including a copy of the charge sheet and a memorandum of an entry in the register of the magistrates' court, detailing the offences) remained valid. There was no prescribed form for the content of such a notice, and no provision was made in the Act for dealing with defective notices.

Gross J nevertheless made these observations (at [42]) as to good practice when drafting such notices:

"(i) Here, I wish to say nothing to increase the paper burden on magistrates' courts and their clerks; nor do I wish to be unduly prescriptive; moreover, as is apparent, nothing like the detail contained in the second Notice is required.

(ii) That said, as a matter of good practice, I cannot avoid observing that the drafting of the Notice was altogether too exiguous.

(iii) Accordingly, it does not seem to me that it would be unduly burdensome to require a s 51(7) notice, as a matter of good practice, either (a) to summarise the offence(s) in a more careful form than was here the case or (b) to cross-refer to documents to be sent to the Crown Court, such as the charge sheet (if unamended) or, perhaps preferably, the Memorandum of an Entry entered in the Register of the magistrates' court.

(iv) The effort of doing so would undoubtedly be time well spent. As Laws LJ observed in McGrath (supra), while defects in s 51(7) notices may well not invalidate the prior sending, deficiencies in such notices may give rise to due process arguments or (as demonstrated in the present case) at least to the unnecessary incurring of time and costs in resolving the matter."

Author: MH

17 February 2006

D9.26 Sending to Crown Court-Notice

R (Bentham) v Governor of HM Prison Wandsworth [2006] EWHC 121 (Admin) holds that defects in a Notice of Transfer to the Crown Court under the Crime and Disorder Act 1998, s. 51(7) do not invalidate the transfer itself. Charges are not to be dismissed because of some technical deficiency in the Notice regardless of an otherwise proper sending, supported by ample supporting material which is available to the judge in the Crown Court. The Court also offers advice on the drafting of the requisite Notice.

It should be noticed that the replacement provisions contained in the Criminal Justice Act 2003, sch. 3, para 18 make provision, in the Crime and Disorder Act 1998, s. 51D, in the like terms for the content of any such Notice. Consequently, while the decision in the instant case and other authorities (such as McGrath [2003] EWCA Crim 2003) establish that defects in the Notice will not invalidate a transfer order properly made, orders made under the prescriptive provisions of s. 51D should take account of the Court's advice that the offences should be summarised effectively either in the Notice or by way of cross-reference to documents such as the charge sheet or the Memorandum of an entry in the Register of the Court to be provided to the Crown Court.

Click here for the full text of the judgment

Author: LL

2 June 2006

D10.2 Signing the Indictment

In Clarke and McDaid [2006] EWCA Crim 1196, the Court of Appeal holds that a failure by the clerk of the court to sign a bill of indictment does not render any conviction made on the indictment a nullity. This was a case in which Latham J directed that an indictment be preferred. The defendants were duly tried and convicted. No point on nullity was taken either at trial or on the first appeal. The Criminal Cases Review Commission concluded, after exhaustive enquiries, that it could not be shown that the indictment had been signed by an officer of the court and referred the convictions to the Court of Appeal in reliance on Morais [1988] 3 All ER 161, according to which the indictment was a nullity.

The Court of Appeal upheld the conviction. The old rigid distinction between mandatory and directory requirements had been exploded by Soneji [2005] UKHL 49 and Ashton, [2006] EWCA Crim 794. The proper question is whether it was the purpose of the legislation that an act done in breach of the provision should be invalid. The Court concluded that a failure to sign an indictment, the preferment of which had been directed by a High Court judge, was not intended to produce invalidity. No prejudice to the defendants had been shown and the convictions should stand.

Click here for the full text of the judgment.

Author: LL

June 2006

D10.2 Requirement that an Indictment be Signed

Morais [1988] 3 All ER 161 was not followed by the Court of Appeal in Clarke [2006] EWCA Crim 1196, in which it was held that the absence of the required signature on a voluntary bill of indictment did not invalidate the subsequent trial or convictions.

The court instead followed Ashton [2006] EWCA Crim 794 (noted in last month's update at D24.17), and Soneji [2005] UKHL 49, in which it was held that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised ("a procedural failure"), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue.

In Clarke, Pill LJ said:

The implications of the approach advocated in Soneji will need to be worked out in the many different circumstances in which parties rely on breaches of the rules, whether the rules appear in a statute or elsewhere. The case does, however, weaken the strict distinction between mandatory and directory requirements, consideration of which was at the heart of the decision in Morais. Whatever its implications in other circumstances, we consider that, in the present situation, we are bound by the decision of this court in Ashton, which is based on Soneji.

Applying Ashton, the proceedings are not rendered automatically invalid because the indictment had not been signed. No prejudice or consequential injustice having been identified, the convictions should stand.

Author: MH

5 August 2005

D10.16 The rule against duplicity

The defendant in Iaquaniello [2005] EWCA 2029, who was at the time a serving police officer, complained of acts of harassment. These were investigated but no culprit was identified. The defendant then committed a series of acts, the purpose of which allegedly was either to support a civil claim against the Metropolitan Police Commissioner or to provoke significant police investigations. The defendant was charged on a multi-count indictment in respect of these incidents but ultimately convicted on count 1 alleging that she did an act or series of acts which had a tendency to corrupt the course of public justice. In this count ten acts were then set out in which the defendant alleged harassment of some sort.

The Court rejected an argument that the count was void for duplicity. The issue for the court is whether as a matter of form (not of evidence) the count charged the defendant with committing two or more separate offences. The reference in the statement of offence to doing an act or acts tended and intended to pervert the course of public justice was not duplicitous. Where a plurality of acts is alleged the indictment does not become bad for duplicity by particularising them as an act or series of acts. The fact that the act can be evidenced by a series of acts renders it unobjectionable that ten specific acts are then particularised. The count was not duplicitous.

Author: LL

^ Return to the top

30 March 2006

10.41 Abuse of Process

Raw (Kevin) [2006] EWCA Crim 657 applies settled principles concerning stay of proceedings for delay and abuse of process. This was a conviction for murder arising from the death of a child. The victim was found to have sustained multiple injuries. Death occurred in December 2000. The appellant was interviewed in December 2000 and interviewed under caution in April 2001. He was also a party to care proceedings in connection with which he gave statements in May and November 2001 and gave evidence in December 2001. In those proceedings, on the evidence then available, the Court of Appeal held that it could not be sure whether the appellant or his partner was responsible for the death of the child. Subsequently the appellant was tried for murder. No second post-mortem could be held.

The Court of Appeal held that in this case there was no manipulation or misuse of the court process. Mistakes were made but incompetence on the part of the prosecution is not a reason for halting a case of this sort in its tracks. There was no bad faith and the fault was not serious enough to amount to an abuse of process. In such a case as this, involving the death of a child, the public interest demands that the person alleged to be responsible should be put on trial provided that he or she can receive a fair trial. Here, nothing made a fair trial impossible. The lack of a second post-mortem did not seriously impede the experts in giving assistance to the court. The delay, while unfortunate, occurred in the context of a number of statements made by the appellant from which he could refresh his memory. He should have been able to give a good account of himself. He was not so prejudiced by delay that a fair trial became impossible.

The trial court was not bound by the finding of the Court of Appeal in the care proceedings. The evidence before the Court of Appeal was less complete than that before the trial court.

These principles were again revisited in S (Crime: Delay in prosecution), (2006) The Times, 29 March 2006. A full transcript is not as yet available. The decision in S adds three points to the above discussion. First, the decision whether or not to grant a stay on grounds of abuse is an exercise in judicial assessment based on judgment rather than on any conclusion as to fact based on evidence and it is therefore potentially misleading to apply the language of burden of proof to it. Secondly, when assessing prejudice the trial judge should bear in mind his power to regulate the evidence and to ensure that all relevant points relating to delay are placed before the jury. Thirdly, even where delay is unjustifiable, a permanent stay should be the exception rather than the rule. In the event S's appeal was dismissed.

Author: LL

1 August 2006

D10.41 Abuse of Process

SL [2006] EWCA Crim 1902 holds that it is neither an abuse of process nor unreasonable for the Crown to bring criminal proceedings against a parent for the death of a child where the family court, in care proceedings relating to another child of the family, has not attributed blame to one parent as against the other. In this case, a child, Ethan, was found dead in circumstances which precluded attribution of death to natural causes. In care proceedings relating to a surviving child, Jamie, Hedley J did not find that either the father or the mother was responsible for the death of the child. There was, however, evidence that pointed to the father as the parent responsible. The Crown brought proceedings against him and he was convicted of manslaughter. At trial before Beatson J, it was argued that it was an abuse of process for the criminal trial to take place or in the alternative unreasonable for such proceedings to be brought having regard to Hedley J's decision in the care proceedings. The appellant argued that his conviction for manslaughter was inconsistent with Hedley J's conclusion that he could not say, in the care proceedings, whether Ethan's death was homicide or if it was that it was the appellant, rather than his partner, who was responsible and that this inconsistency was an affront to public justice

The Court of Appeal, following a careful review of the authorities, concluded that Beatson J had been correct to allow the prosecution to proceed. The decision in the care proceedings was not and could not be a final determination of the criminal proceedings. It could not give rise to double jeopardy or issue estoppel. Even had Hedley J invited the Crown to attend the care proceedings as an interested party and had said, as he did not, that he intended his decision finally to decide the outcome of all proceedings involving the appellant, such observations would not bind the criminal court. The Crown was entitled not to accept Hedley J's reservations as to whether Ethan's death was a homicide and, having reflected on Hedley J's judgment and the public interest test for prosecution, to bring proceedings for manslaughter. The ultimate responsibility for bringing criminal proceedings lies on the Crown. Its decision to do so could not amount to an affront to public justice.

The Crown should provide an explanation of its decision to bring proceedings when asked to do so by the trial judge. Nothing in the above principles justifies the Crown in refusing to do so.

The Court further addresses the desirability of avoiding problems arising from contemporaneous civil and criminal proceedings in respect of the same matter. The Court states (at [73]:

We emphasise however, that because procedural and evidential difficulties can arise when there are in existence parallel care proceedings in respect of a child and criminal proceedings against a person connected with that child in respect of a serious offence against the child (or any person connected with the child), it is essential that there should be close liaison between the local Social Services Authority conducting the care proceedings and the Crown Prosecution Service. Wherever possible, linked criminal and care directions hearings should take place as the cases progress. Since November 1993 there has been in operation in the Greater London area a Practice Statement issued by the Presiding Judges and the Family Division Liaison Judge for London with the approval of the Senior Presiding Judge, which sets out a scheme for the purposes of identifying cases where difficulties are likely to arise and provides for linked direction hearings to take place in the Crown Court to which the criminal case has been committed before one of a number of judges nominated for the purposes of the scheme.

Click here for the full text of the judgment.

Author: LL

D11.5 Custody Time Limits: Criteria for Extension

R (Gibson) v Winchester Crown Court [2004] EWHC 361 (Admin) was applied in R (Thomas) v Central Criminal Court [2006] All ER (D) 88 (Jul).

Author: MH

30 August 2006

D11.5 Custody Time Limits - Criteria for Extension

In R (Hughes) v Woolwich Crown Court and CPS [2006] EWHC 2191 (Admin) the defendant was charged with rape and assault by way of digital penetration. His defence was consent. He alleged that the victim, who lived in the same block of flats, had telephoned him every day. The defendant sought disclosure of the victim's telephone records. These were, as prosecuting counsel recognised as early as 7 April 2006, potentially of importance to the defence because they might tend to support the defence allegation of consent. On 23 June 2006, trial having been fixed for 24 July, the defence requested records of all outgoing telephone calls. The CPS failed to answer this letter. On 11 July a formal defence statement was filed, well out of time, and the request for the records was renewed. The CPS requested the records on 19th July. Trial was twice postponed. The records had still not been obtained by 4 August when the matter came before HH Judge Stone, though they were obtained by the following week.

For the purpose of determining whether there was good and sufficient cause for the delay and whether the prosecution had acted with all due expedition as required by the Prosecution of Offences Act 1985, s. 23(2), HH Judge Stone treated the trigger date as the date upon which the defence filed its defence case statement (i.e. 11 July 2006). In the circumstances this was held to be wrong: the prosecution was informed of the relevance of the telephone records as early as 7 April. The defence had requested the records on 23 June. The judge should have had regard to these matters. It was not necessary for the prosecution to await the formal defence statement in order to take necessary steps to ensure that the trial began on time. The telephone records should have been obtained and disclosed. In determining whether the prosecution has acted with due diligence, the judge should have, but failed to, take account of the chronology and the prosecution's disclosure obligations.

The question of bail and the conditions to be imposed were remitted to the Crown Court as the tribunal best situated to deal with the matter. One would expect this to be the normal procedure in such cases.

It seems clear from this judgment that whether the Crown has acted with due diligence is not a question to be determined mechanically, counting from the formal completion of any particular step in pre-trial preparation, but functionally, having regard inter alia to the nature of the material in question and whether the Crown was aware or made aware of the importance of such matters as disclosure.

Click here for the full judgment

Author: LL

D11.16 Unfitness to Plead

In R (on the application of Hasani) v Blackfriars Crown Court [2005] EWHC 3016, the Divisional Court addressed the question of what procedure should be adopted when the defendant has been found unfit to plead, and (on a trial of the facts) is found to have committed the acts alleged but before any order is made following those findings he recovers sufficiently well to stand trial. It was held that a further hearing is required under the Criminal Procedure (Insanity) Act 1964, s. 4, even if this is only a formality. If the defendant is indeed found fit to stand trial, ss. 4A and 5 at once cease to be applicable and the court should then proceed to arraignment.

Author: MH

10 January 2006

D11.18 Fitness to plead

Nothing in the Criminal Procedure (Insanity) Act1964 precludes the holding of a second hearing on the issue of fitness to plead where the evidence justifies that course and where no final disposition of the case has been made. In Hasani v Blackfriars Crown Court [2005] EWHC 3016 (Admin) the defendant was found unfit to plead to serious offences against the person. A jury then determined that he had done the acts in question. The judge adjourned the matter to determine the issue of disposal. Before that issue could be determined, evidence was presented to show that the defendant was capable of pleading. Counsel urged that the procedure under ss. 4A and 5 of the Act had to be followed and asked that the defendant be granted a conditional discharge. The judge declined to do so and instead directed that the defendant be arraigned. The defendant brought judicial review proceedings against that decision. The judge's order was quashed and the case was remitted back to the Crown Court. While it was not necessary to follow the procedure laid down in ss. 4A and 5, the order to arraign was premature in that a fresh section 4 hearing on fitness to plead had to be held first, even if only a technicality in the case in question.

Click here for the full text of the judgment.

Author: LL

March 2006

D11.42 Retrial Provisions of the Criminal Justice Act 2003

In Re D (acquitted person: retrial) (2006) The Times, 6 March 2006, the Court of Appeal has for the first time examined its new power to quash an acquittal for a qualifying offence and order a retrial, together with related matters such as the court's power to restrict publication of the proceedings in question.

Further consideration of this case must await availability of a transcript of the judgment.

Author: MH

29 September 2006

D11.42 Double jeopardy-retrial provisions

D [2006] EWCA Crim 1354, sub nom Dunlop (2006) The Times, 14 September 2006 is the first reported case under the retrial provisions of part 10 of the Criminal Justice Act 2003. In brief, Dunlop was tried twice for the murder of Julie Hogg. The jury was unable to agree on both occasions. Subsequently, Dunlop confessed his guilt in a document relating to care proceedings in respect of his daughter, to others including a prison officer, and ultimately pleaded guilty to a charge that he had perjured himself at his trial. Following the enactment of part 10 of the Criminal Justice Act 2003, the Crown applied to charge him with the murder of Julie Hogg.

In allowing the application the Court held as follows, in response to the defendant's arguments:

Using accepted techniques of jury management, it should be possible to select a jury that is not prejudiced by such publicity. In any event, by virtue of the Police and Criminal Evidence Act 1984, s. 74(3), the defendant would, given his conviction of perjury, be taken to have committed that offence unless the contrary be proved. On a retrial the jury would proceed on the premise that he committed perjury when he denied being guilty of the murder of Julie Hogg unless the contrary be proved. Any recollection that any member of the jury had about publicity would pale into insignificance in comparison to the legitimate prejudicial effect of Dunlop's admissions that he had killed Julie Hogg.
Delay here had no special quality so as to make it unfair to try Dunlop for the murder.
The fact that when Dunlop made admissions he could not have been tried for murder does not preclude his now being charged with the offence. Even without the conviction for perjury, a formidable case could have been mounted against him on the basis of statements made to persons other than police officers, for example a nurse who had looked after him in hospital, and the incriminating statement which he made in proceedings under the Children Act relating to his daughter. When he made his statements, Dunlop knew that the double jeopardy rule might be altered because he was aware of the consultation paper on the topic, and he made his statements because he wanted psychiatric help so he was not induced to make his statements by the police because he had been told that he could not be retried for murder: Kirk [2001] 1 Cr App R 400 distinguished. The Court did however approach the case on the footing that, had Dunlop known that he might be retried, he might not have provided the confessions which were the new and compelling evidence justifying his retrial.
Even though Dunlop served a sentence for perjury, the public would be outraged were he not to be retried for the murder. The sentence imposed for the perjury can be taken in to account when assessing the minimum term for the murder. There is therefore no injustice in allowing a retrial in this case.

On 12 September 2006 Dunlop pleaded guilty to the murder of Julie Hogg.

Click here for full text of the judgment

Author: LL

December 2005

D11.54 Judicial Indications of Sentence

Goodyear [2005] EWCA Crim 888, [2005] 3 All ER 117 and Turner [1970] 2 All ER 281 were considered by the Court of Appeal in A-G's Ref (No. 80 of 2005), Wedlock-Ward [2005] All ER (D) 214 (Nov), 16 November 2005, CA. See further D13.22 below.

Author: MH

June 2006

D11.61 Plea Bargaining: Judicial Indications of Sentence

The dangers of a judge intervening to indicate that a guilty plea would avoid the risk of a custodial sentence are illustrated in A-G's Reference (No. 38 of 2006); Halford [2006] All ER (D) 211 (May), in which the Court of Appeal quashed a community penalty imposed following such a plea of guilty in a case of causing two deaths by dangerous driving and substituted a sentence of 12 months' custody in its place. Describing the judge's intervention as 'unfortunate' and the sentence as unduly lenient, the court nevertheless accepted that it increased the element of double jeopardy involved when the Attorney-General then referred the sentence to them. In ordinary circumstances, the appropriate starting point, before making allowance for the guilty plea and for the offender's youth and inexperience, would have been two and a half years.

Author: MH

29 November 2005

D11.63 Change of Plea

McPeake, [2005] All ER (D 349 (Nov) follows Poole [2002] 1 WLR 1528, mentioned D11.63 of the main work. The defendant was tried on one count of an indictment for arson being reckless whether life would be endangered. In the light of the evidence the trial judge allowed the indictment to be amended in such a way as to allege recklessness as to the lives of rescuers. The defendant indicated that he would plead guilty to the new count and did so, whereupon the judge discharged the jury. Defence counsel, relying upon Archbold, advised that the proceedings had been a nullity on the ground that the trial had not been validly concluded in that to conclude a trial once the defendant was given in charge of the jury there had to be a verdict by a properly constituted jury. Counsel later conceded that this was wrong in the light of Poole and withdrew. The defendant continued the appeal in person. Held: There was no arguable ground of appeal based on the procedure followed by the trial judge of discharging the jury after the defendant had pleaded guilty to the fresh count. No unfairness had been caused to the defendant. His guilty plea was treated in the same way as it would have been had it been tendered before the jury sworn on the original count. Furthermore, while the defendant might have been described as being in charge of the jury on the first count they had not been in charge in respect of the second count. Hancock 23 Cr App R 16 and Heyes [1950] 2 All ER 587 considered.

Author: LL

11 September 2006

D11.64 Change of plea-guilty to not guilty

Revitt and Others v DPP [2006] EWHC 2266 (Admin) restates familiar propositions relating to the court's discretion to allow an accused person to change his guilty plea. The defendants, who were seen to have driven their motorcycles at undue speed, pleaded guilty to dangerous driving and to other motoring offences, namely driving without a valid licence, driving without insurance, and driving a vehicle without a valid test certificate. The defendants were unrepresented when they entered their guilty pleas. They were informed by the court of the nature of the charge (which they agreed that they understood), declined an offer of advance disclosure, were informed that the charges were serious and that for them to be legally advised was desirable, and finally that the charges were serious and could merit a custodial sentence. The magistrates retired to consider sentence. Solicitors by now acting for the defendants then sought unsuccessfully to withdraw their guilty pleas and again unsuccessfully renewed their application when the defendants came up for sentence some days later, contending that the defendants thought that they were pleading guilty to public nuisance.

On appeal, the defendants contended that the practice followed in relation to guilty pleas is incompatible with the ECHR, Article 6 and, further, that they did not receive a fair trial.

The Court held that the guilty plea procedure, given the safeguards which surround it (including the court's discretion to allow a change of plea), is consistent with Article 6. The discretion to withdraw an informed and unequivocal plea of guilty should be exercised having regard to whether there is concern whether a guilty plea was intended or really ought to have been made. Here, the defendants fully appreciated the nature of the charge. Their pleas of guilty to other motoring offences rendered incredible the assertion that they intended to plead guilty to nuisance. This was not a case in which the material facts did not amount to the offence charged. Accordingly, the magistrates acted within their discretion in refusing to allow a change of plea. S v Recorder of Manchester [1971] AC 481; South Tameside Magistrates' Court, ex parte Rowland [1983] 3 All ER 689 (per Glidewell J at p 692) and Bournemouth JJ, ex parte Maguire [1997] COD 21 applied.

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Author: LL

D12.2 Excusal as of Right

The Criminal Procedure (Amendment) Rules 2006 (SI 2006 No. 353) amend the Criminal Procedure Rules 2005. The amendments include the addition of a new r. 39.2 (appeal against refusal to excuse from jury service or to defer attendance). It incorporates the provisions which were formally found in r. 25 of the Crown Court Rules 1982.

Author: MH

September 2005

D12.11 Challenging Jurors

The Court of Appeal in Abdroikov [2005] EWCA Crim 1986 considered three cases where the issue was whether the fact that a member of the jury was connected to the criminal justice system was a valid ground of complaint against the composition of the jury. In two cases a serving police officer had been on the jury and in the third case a solicitor employed by the CPS had served on the jury.

The Court of Appeal held as follows:

it is not a valid reason for exclusion that the involvement of such persons in the criminal justice system meant that they would know more about its workings than would normal citizens and in particular might be in a position to draw inferences that other jury members would not be able to draw;
it is not a valid reason for exclusion that such persons might try to dominate the jury since other jurors would be unlikely to submit to such domination;
it cannot be assumed in the abstract that such jurors might not approach the case with the same open-mindedness as someone unconnected with the legal system.

A fair-minded and informed observer would not conclude that a juror was biased merely because his occupation was one which meant that he was involved in some capacity or other in the administration of justice.

A juror who had special knowledge of a case ought to draw such knowledge to the attention of the judge. Further guidance has been provided for those involved in the administration of justice to avoid them being summoned to appear at courts where the likelihood of their being well known to those conducting the trial was undesirably high. If a situation did arise where a juror knew those taking part in the proceedings then the judge should determine, in his discretion, whether that individual should remain part of the jury.

If, despite all this, a member of the jury had knowledge which made it undesirable for him to sit, the usual test for bias applies to determine whether the requirements of fairness have been met (see Porter v Magill [2002] UKHL at [103]).

Click here for the full text of Abdroikov.

Click here for the full text of Porter v Magill.

Author: MH

17 March 2006

D12.20 Discharge of Jury

In Russell [2006] EWCA Crim 470 the Court of Appeal considers whether misconduct by an accused should result in the discharge of a jury. The accused, who was being tried for attempted murder and other offences, leapt from the dock during the summing up and attacked the judge. Following the attack an officer in the case, PS Rixon, and another officer entered the judge"s room to discuss issues of security. The judge was so shocked as not to ask PS Rixon to leave the room. The judge was asked to discharge the jury on the footing that, having witnessed the attack, they could no longer try the accused impartially. The judge refused to discharge the jury remarking that an accused could not, by manipulative conduct of the sort in which he engaged, procure a fresh trial before another jury.

Before the Court of Appeal, two grounds were argued. The first was that the jury should have been asked whether they could continue with the trial impartially. The second referred to an apprehension of bias arising from PS Rixon"s attendance on the judge after the attack. The Court rejected both grounds. Unlike the case of Brown [2001], EWCA Crim 2828, there was no doubt whether the accused committed an attack on the judge: clearly he did so. The accused contended that he attacked the judge because he feared that he was not getting a fair trial. That issue was for the Court of Appeal. No defendant can pre-empt that course by seeking to disrupt the trial. The conduct was manipulative and intended to abort the trial. To continue with the trial was neither unfair nor capable of being seen as unfair. There was no need to interrogate the jury. Nor could it be said that PS Rixon"s brief attendance on the judge, with another officer, to discuss issues of security was capable of raising an apprehension of bias.

Click here for the full text of the judgment.

Author: LL

28 February 2006

D12.21 Prejudice - discharge of jury

In Azam and others [2006] EWCA Crim 161 the Court of Appeal considered when the trial judge should discharge the jury, in a case where the principal Crown witness proved to be difficult, aggressive, assertive and at times uncontrollable and asserted that the defendants were gangsters. The Court enunciated the following propositions:

As an integral part of his duty to ensure that a jury trial is fair, the judge retains, and where necessary should exercise, his discretionary power to discharge the jury.
The judge may exercise this power whichever side invites him to do so. He may also act of his own motion and even when both sides assert that he should not.
If there are real grounds for doubting the ability of the jury to bring an objective judgment to bear on the issues the jury should be discharged (adapting Locabail (UK) Ltd. v. Bayfield Properties Ltd [2000] QB 451 at p. 480).
The question whether the jury may be biased or apparently biased requires a balanced judgment of the things said to create the risk of bias in the jury while simultaneously taking account of the directions available to be given by the judge to extinguish the risk. The ultimate question is fact or case specific in the context of the trial process as a whole.
The Court of Appeal will interfere with decisions made by the trial judge concerning the conduct of the case only if the Court is satisfied that they were wrong.

In this case, an attempted murder by shooting, had the jury been discharged, there would have had to have been a second trial. It could not be said that the witness would have behaved better. The wild assertions of the witness could be countered by a specific and unequivocal direction to the jury. This was in fact done. The appeal was therefore dismissed on this and other grounds (of which there is no need to take account here).

Click here for the full text of judgment.

Author: LL

D12.25 Judge-Only Trial on indictment

The Criminal Justice Act 2003 (Commencement No. 13 and Transitional Provisions) Order 2006 (SI 2006 No. 1835) brings into force, on 24 July 2006, ss. 33(1) (defence disclosure: but only insofar as it inserts s. 5(5C) into the Criminal Procedure and Investigations Act 1996), 44 (jury tampering), 45 (procedure for applications: applications under s. 44 only), 46 (discharge of jury because of jury tampering), 47 (appeals) and 48 (insofar as it applies to s. 44 or 46) and sch. 36, part 4 (minor and consequential amendments).

Author: MH

30 September 2005

D13.3; D23.25; F19.7 Judge: inappropriate comment; duties of counsel; adducing evidence of no comment interview

The cases of Lashley [2005] EWCA Crim 2016; (2005) The Times, 28 September 2005, C [2005] EWCA Crim 2170 and Dickens [2005] EWCA Crim 2017 are illustrations of appeals being allowed because the trial judge so conducted himself as to cause both the defendant and an independent observer, had one been present, to conclude that a fair trial could not be had. A conviction may be overturned on this ground even though the objectionable comments were made in the absence of the jury. In Lashley the judge indulged in disproportionate criticism of counsel, unjustifiably attacking both her competence and her professional integrity. The same may be said of C where the judge made prejudicial comments in the presence of the jury. In Dickens the judge indulged in peremptory and intemperate language, and made a devastating and inappropriate comment. This, it may be inferred, would probably have been enough to allow the appeal but, in addition, the judge wrongly declined to give a direction on self-defence when the circumstances required it.

The issues for the Court are whether the trial judge went beyond what was acceptable and whether, in consequence, his comments rendered the verdict unsafe. In C the court points out that, even though the case against the defendant is a strong one, he is entitled to a fair trial. It would seem that the strength of the evidence will not, at least as a general rule, lead the court to conclude that the conviction was safe.

In Lashley the duties of counsel are also considered. Crown counsel should not normally, in opening, address the jury on issues of law, save perhaps to comment briefly on the burden and standard of proof. A short and focussed submission on the law may, however, be appropriate in a difficult case where the judge agrees that this may assist the jury.

Counsel should not repeatedly press the judge when he has made a final ruling in the course of the trial, even though counsel thinks that the judge may have misunderstood his submission or fears that he has not expressed himself clearly. The proper remedy is before the Court of Appeal. The situation is different where the judge has given a preliminary view. Counsel may then seek to challenge that view.

The Court also addresses when evidence of a 'no comment' interview should be given. The correct practice is for such evidence to be adduced after the defendant has given evidence. At that point it should be clear if the question of whether the jury should be invited to draw an adverse inference against the accused is likely to be a live issue.

In Dickens the Court points out that the trial judge may invite counsel to consider something which may have been overlooked - in that case the possibility of putting in the defendant's past convictions under the Criminal Justice Act 2003.

Author: LL

6 January 2006

D13.4, D24.21, F13.1 - 13.6, Good character direction: Incompetence of counsel: Conduct of prosecution counsel

In Mansoor Ramdhanie and others v The State [2005] UKPC 47 (on app. from Trinidad) the Privy Council reiterates that, where a defendant's good character is established by evidence (including an admission by the prosecutor) or by cross-examination, the trial judge must direct the jury as to both credibility and propensity. The issue of good character must be raised distinctly in such a way as to establish the defendant's good character.

In some instances failure by counsel to raise the issue will render the verdict unsafe. The focus of an appellate court ought to be on the impact which counsel's error had or might have had on the trial and verdict rather than ranking counsel's errors on some scale of ineptitude: Boodram v The State [2002] 1 Cr App R 203 was followed.

Their lordships reiterate the obligation on the prosecutor to present the case as a Minister of Justice. He should, in particular, not express his personal opinion as to the merits of the prosecution case.

Click here for the full text of the judgment.

Author: LL

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

The Criminal Procedure (Amendment) Rules 2006 (SI 2006 No. 353) amend the Criminal Procedure Rules 2005. The amendments include the substitution of part 15 (preparatory hearings in cases of serious fraud and other complex, serious or lengthy cases in the Crown Court). The new version makes provision for applications for preparatory hearings on the ground that the prosecutor wants the court to order that the trial be without a jury under the Criminal Justice Act 2003, s. 43 or s. 44.

Author: MH

May 2006

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

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

Author: MH