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Companion Website
Blackstone's Criminal Practice 2006
Part D 14 - 29
Updates to Part D sections D14 - D28
D14.27, F1.10 No Case to Answer: Circumstantial Evidence
Danells (Michael) [2006] EWCA 628 was an appeal against a conviction for murder. The circumstantial evidence against the appellant was strong. The trial judge rejected a submission of no case. His submission was that this was a case of circumstantial evidence in which the evidence, taken at its highest, was such that a jury properly directed could not properly convict on it because the circumstances, while consistent with the prosecution case, were also consistent with the defence case as disclosed in interview by the appellant.
The Court holds that the decision in Moore (1992, unreported), whilst supporting the proposition that the inference there invited on behalf of the appellant was a reasonable one about which a jury was bound to have a doubt, does not support the proposition that the mere fact that the version of the facts contended for by the appellant was a logical possibility requires the trial judge to withdraw the case from the jury. The proffered version may be logical but so implausible that a jury would be justified in rejecting it. At the end of the prosecution case the judge is not required to withdraw a case from the jury where the circumstantial evidence for the prosecution is strong and the logically possible defence case is one which a reasonable jury would be entitled to reject: Galbraith [1981] 1 WLR 1039 followed; McGreevy v DPP [1973] 1 WLR 276 considered; Moore (1992 unreported) distinguished.
Click here for full text of the judgment.
Author: LL
D15.3, F7.10 Cross-examination-duty of counsel; Accused as witness
Ebanks v The Queen [2005] UKPC 16 considers counsel's duty in circumstances where his client wishes to challenge the veracity of police witnesses but refuses to give evidence himself. This was a conviction for murder in which the defendant insisted that a statement which he allegedly made was a fabrication and that the police evidence was a lie. Counsel did not, on the voir dire, accuse police officers of lying and the Privy Council concluded that there would have been no basis for so doing. The Board nonetheless considered the authorities relating to counsel's duty when faced with a client who accused the police of lying but who refuses to give evidence. The Board approved the statement in Blackstone's Criminal Practice, F7.10 that, if a client with a very bad record refuses to testify, counsel, after warning his client that the judge will probably comment adversely on his failure to support the allegations by evidence, must adhere to his client's instructions and cross-examine accordingly. Indeed, the duty of counsel so to cross-examine may not, having regard to the terms of the Board's judgment, be restricted to cases in which the accused has a very bad record: it may describe counsel's duty in any case in which the defendant accuses the police of lying. The Board's judgment (at [29]) is not entirely unambiguous, but it is submitted that the above statement reflects the purport of it.
Two further matters are noteworthy. The first is the reiteration of the well-known rule of practice that counsel should ensure that his brief is endorsed where the defendant gives instructions that he will not give evidence. The second is to hold that an appellate court is not bound to proceed on the defendant's version of events in circumstances where no such endorsement is recorded. The Court's duty is simply to resolve the issues as best it may.
Click here for the full text of the judgment.
Author: LL
D16.9 Closing Speeches
The permissible limits of what may be said in the course of a prosecutor's closing speech to the jury were considered by the Privy Council in Ramdhanie and others v The State [2005] UKPC 47, in which counsel had improperly implied that there was incriminating material which had not been put before the jury, and had also used emotive and unjustified comments as to the supposed weakness of the defence case and the strength and soundness of the prosecution's case.
The Privy Council advised that these faults gave rise to a material irregularity and unfairness in the trial process and rendered the jury's verdicts unsafe.
Author: MH
D16.16 Judge's Summing-up: the Facts
It may be appropriate in some cases for a judge to leave a case to the jury on a different basis from that presented by the prosecution, but where this is done it must be done in a way so as to avoid any possible injustice to the defendant. The judge must accordingly warn counsel at the earliest opportunity and must give the defence the opportunity to consider whether it might be appropriate to call further evidence. See Powell [2006] All ER (D) 146 (Jan), 23 January 2006, CA.
Author: MH
D16.19 Summing-up Amounting to Direction
Despite the ruling in Wang [2005] EWCA Crim 476, convictions previously imposed following directions to convict are not necessarily unsafe. In Caley-Knowles and Jones [2006] EWCA Crim 1611 the Court of Appeal distinguished cases such as the ones before them (or Wang itself) in which the jury had been required to return a guilty verdict without even retiring, and cases such as Kelleher [2003] EWCA Crim 3525 in which, despite being told that the only possible verdict was 'guilty', the jury was at least allowed to retire and bring back a verdict. In Kelleher the court held that the conviction could still be considered safe, even though the judge had 'crossed the line' between firm advice as to the only proper verdict and a direction to convict. Caley-Knowles suggests that this was the right approach and was not overruled by Wang. Tuckey LJ said (at [26]):
There is clearly a distinction between our cases and Kelleher which is that in Kelleher the jury were left to make a decision and retired in order to enable them to do so. In our cases, as the facts which we have related show, the judges said in terms that they had taken the decision away from the jury who were given no opportunity to retire and consider the matter for themselves. We think these are crucial distinctions. The decision in each of our cases was not in reality made by the jury at all. In each case it was made by the judge. Following clarification of the law in Wang, this must, we think, be characterised as a significant legal misdirection or a material irregularity, even though the evidence of the appellant's guilt in each case was clear.
In other words, nothing can be done to save a conviction if the jury foreman is simply told to stand up and say 'guilty'.
There is of course a paradox here: a jury can properly be told that if they find the facts to be X, they must convict, but they cannot properly be told that, since everyone (including the defence) agree the facts are X, they must convict.
Author: MH
D17.1 Basic Rules
Although a judge may not be changed or replaced during the course of a trial, it is possible, in the event of his death or illness, for the jury's verdict to be delivered to a replacement judge: see El-Ghaidouni [2006] EWCA Crim 845. Difficulties may however arise where, as in El-Ghaidoun, the jury return with questions concerning the evidence that the replacement judge cannot satisfactorily answer even with the assistance of counsel. A retrial was ordered in that case.
Author: MH
D17.5 Prohibition of Further Evidence once Jury Enclosed
The general prohibition on further evidence being received after the jury has retired is not infringed where a jury which in court has been shown only parts of a videotape (of which a full transcript has also been provided) is then allowed to view the whole tape in the jury room and attempt to decipher a passage referred to in the transcript as 'inaudible'. See Edwards [2006] All ER (D) 272 (May). The Court of Appeal likened this to a case in which a bundle of photographs have been exhibited in evidence, but only a few of them have been specifically referred to in court.
Author: MH
D17.5, D17.6 Retirement of jury-presence of police officer
Szypusz and others [2006] EWCA Crim 1552 was a case of attempted murder in which the victim was shot. There was evidence of a CCTV recording which showed the defendant making calls from a mobile phone around the time calls were made to the mobile phone of the gunman. The footage had been viewed at trial using specialist equipment which was operated by a specially trained police officer. During their deliberations the jury asked to see the footage again. No objection was raised to this. The equipment was operated by the police officer in the jury room, the jury having been instructed not to communicate with him except as regarded the operation of the equipment. At a later stage, a juror with similar expertise operated the equipment. The defendant argued that, where a person who was involved in the case retired with the jury for a considerable period while they deliberated, his presence and body language might have influenced them and that this amounted to a fundamental infringement of the jury"s deliberation and rendered the conviction unsafe. The appeal was dismissed. The integrity of the jury does not require onerous restriction. Jurors can be trusted not to let extraneous factors influence their decision. There was here no sign that the jury had been influenced in any way. There was significant other evidence on which the jury could convict. An informed, fair-minded observer would not on the facts of the case believe that there was a real danger that the jury had been improperly influenced so as to render the conviction unsafe.
The Court went on to indicate that, where the material is incapable of being played on machinery that the jury can take into the jury room, it is better that it be re-played in open court so avoiding the need for the presence of an extraneous individual in the jury room.
Author: LL
D17.6; D17.34 Questions from jury; Encouraging the Jury to Reach a Verdict
AB [2006] EWCA Crim 786 involved a prosecution for indecent assault. During the trial, before the jury retired to consider their verdict but after the close of the defence evidence, the jury sent a note to the judge enquiring whether the defendant was left-handed or right-handed. The judge disclosed the existence but not the content of the note to counsel. Without seeking counsel's assistance, he recalled the defendant and put the question to him. Having received an answer the trial continued. The jury were unable to reach a unanimous verdict on one count, having acquitted on the others. Conditions in the court and jury room were very hot. The foreman sent up a note, of which counsel were not informed, which said that the jury were split 9 to 3 and that there was no possibility of a change of mind. The judge raised the question of a Watson direction to which the defence objected. The judge called the jury in and was told that a majority verdict might be possible. A Watson direction was given and the jury retired at 12:58, returning a majority verdict at 2:00 pm.
In respect of the first note the court holds that the rule in Gorman [1987] 1 WLR 545 should apply even though the jury had not retired. In almost every case where a note is connected with the trial, the judge should state in open court the nature and content of any communication which he has received from the jury and, if he considers it helpful to do so, seek the assistance of counsel. The rule is intended to ensure against any suspicion of a private or secret communication between judge and jury. Here, the course followed might have caused the jury to doubt the defendant's veracity.
The judge should not have given a Watson direction without informing counsel of the note which he received. In the circumstances a Watson direction could have placed the jury under undesirable pressure.
Author: LL
D17.19; D1.63 Alternative Offences: Discretion to Prosecute
In Timmins [2005] EWCA Crim 2909, the Court of Appeal held, in the context of alternative offences to a charge of rape contrary to the Sexual Offences Act 1956, s. 1, that a trial court was right to direct the jury concerning the alternative offence of indecent assault contrary to s. 14(1) of the Sexual Offences Act 1956 notwithstanding that the conduct could also amount to unlawful sexual intercourse under s. 6(1) (in respect of which no prosecution could have been brought by reason of the effluxion of time). The appellant's argument was, essentially, that the decision of the House of Lords in J [2004] UKHL 42, holding that it is wrong to charge an offence under s. 14 when an offence of unlawful sexual intercourse, appropriate on the facts, would have been barred by the 12-month time-limit in s. 37, precluded any direction on the alternative offence under s. 14. J, the Court held, was not concerned with alternative verdicts: it was concerned with evasion by the prosecution of the statutory limitation period applicable to s. 6 by charging indecent assault.
The prosecution would of course commit an abuse of process were it to charge rape where there was no real hope of procuring a conviction for that offence but where it might hope to procure a direction on an alternative offence. This is implicit in the Code for Crown Prosecutors as well as in the general law. As such the point has relevance beyond the example afforded by the Sexual Offences Act 1956.
Click here for the full text of the judgment in Timmins.
Author: LL
D17.30 Judge's Discretion in Directing Jury as to Alternative Offences
Coutts [2006] UKHL 39 rejects the test proposed by Lord Ackner in Maxwell [1990] 1 WLR 401. This was a case in which the accused caused the death of a young woman. His story was that she consented to a ligature being tightened around her neck so as to increase pleasure. The prosecution medical evidence was that strangulation would have taken 2-3 minutes and that the accused would have been aware of what was taking place. Medical evidence for the defence was that she might have died suddenly from vagal inhibition. Other evidence in the case suggested an interest by the accused in necrophilia. The Crown put its case on an all or nothing basis and urged the trial judge not to direct on manslaughter on the basis that it would be prejudicial to the accused to do so. The accused, for tactical reasons (fearing a long sentence for manslaughter), also did not wish the jury to be so directed. In the result no direction on manslaughter was given and the accused was convicted of murder. His appeal to the Court of Appeal was rejected.
The House of Lords unanimously held that this was a case in which a direction on manslaughter should have been given. Neither the wishes of the prosecution nor the defence were dispositive. Unless an alternative offence (for which there is evidence before the jury) presents as trifling in context, the jury should be directed on the alternative offence, whether it founds upon the Crown or, as here, the defence case. This rule is limited, however, to cases in which the possible alternative verdict fairly arises on the evidence, ie is such as would have presented itself to the mind of a knowledgeable and experienced criminal judge. The test is not whether the court must be satisfied that the jury, in the absence of an alternative offence direction, may have convicted from a desire to ensure that the accused would not get clean away in the face of disgraceful conduct. Such a test would be unworkable in a jury trial. The court must be concerned with what might have been the reaction of the jury had the alternative offence been placed before it. The jury must be able to consider its verdict on a proper basis. There is a clear public interest in verdicts being recorded on a proper basis.
Click here for the full text of the judgment.
Author: LL
D17.33 Pressure on jury
Buttle [2006] EWCA Crim 246 deals with what evidence of pressure may be admitted where it is alleged that, at trial, the judge placed the jury under improper pressure. In this case the judge, late on a Friday afternoon, and after having given a majority direction, informed the jury that they could have all the time required to reach a verdict and that, if there was a prospect that the jury could reach a majority verdict on the Monday, they could then return. The foreman, on being asked whether the jury wished to retire to consider this answered in the affirmative. Some three minutes later the jury returned a majority verdict of guilty.
The alleged evidence of pressure came from a dock officer, who stated that when the judge directed the jury that they could have more time and could come back on Monday if necessary some jurors stared hard at one of their number - from which the dock officer concluded that the juror had been placed under pressure to agree to a verdict.
The Court concluded that the judge's directions had been entirely proper and were not such as to place the jury under pressure. The Court further concluded that the dock officer's statement could not be received because it was akin to evidence of what transpired in the jury room. It might be added that the prohibition is against the court putting pressure on juries and does not concern pressure asserted by other jury members. In any event, the exerting of actual pressure by other jury members must refer to what takes place in the jury room unless, indeed, evidence comes to light of communications between jurors outside the jury room and in violation of standard instructions.
Author: LL
4 November 2005
D18.14 Disputes about facts following verdict
Where an accused has been tried for a number of offences and has been acquitted of one and convicted of others, the sentencer must accept the implications of the verdict in determining the factual basis of sentence. If, however, more than one view of the facts would be consistent with the verdict, the sentencer may form his own views in the light of the evidence and pass sentence on that basis.
The Court of Appeal so held in Cox [2005] EWCA Crim 2801 where the accused, having been convicted at one trial of assault occasioning actual bodily harm and on another trial of making threats to kill and attempting to damage property, had been sentenced to consecutive terms of imprisonment and in respect of the conviction on the second trial on the basis that he had a knife in his possession at the time. The accused had been acquitted on a count of entering a building as a trespasser with intent to inflict harm on another, in relation to which it was alleged that he had a flick knife in his possession.
The Court held that the learned Recorder could take the view that the verdict on this count did not preclude a finding that the accused was armed with a flick knife. There was clear evidence that he was. The verdict of the jury could be explained on the footing that they had a doubt whether the accused attempted to inflict grievous bodily harm on his victim (who escaped unscathed from the scene). The accused did not seek to give evidence on this issue at the time of sentence.
Consecutive sentences were justified: the second offence was committed at a time when the accused was on bail for an offence of violence and it was a serious offence of its type.
Author: LL
D18.34 Pronouncement of Sentence
In Barber [2006] EWCA Crim 162 Swift J said:
"36. We would respectfully remind judges of the requirements of the Criminal Justice Act 2003 s 174 and of the importance of explaining in clear and unambiguous terms the effects of a custodial sentence, including the length of time that the offender will serve in custody and the length of time for which he will remain on licence after his release. Furthermore, we would remind counsel of their obligation to remind the court, where necessary, of the requirements of s 174."
Author: MH
December 2005
D19.23 Unfitness to Plead in the Context of Summary Proceedings
As noted in the main text, the Divisional Court in R (P) v Barking Youth Court [2002] 2 Cr App R 294, [2002] EWHC 734 (Admin) held that where there is any dispute as to whether a defendant in summary proceedings is fit to be tried, the procedure for dealing with such matters, whether in an adult magistrates' court or in a youth court, is specifically provided for (in respect of offences punishable in the case of an adult offender by imprisonment) by the Mental Health Act 1983, s. 37(3) read in conjunction with the Powers of Criminal Courts (Sentencing) Act 2000, s. 11(1). These two provisions, said Wright J, 'provide a complete statutory framework for the determination by the magistrates' court, itself a creature of statute, of all the issues that arise in cases of defendants who are or may be mentally ill or suffering from severe mental impairment in the context of offences which are triable summarily only.'
No mention of that ruling was made in R (TP) v West London Youth Court [2005] EWHC 2583 (Admin) but the court did consider whether the claimant (who had been a defendant in the youth court and, although aged 15, had the IQ of an eight-year-old) could properly face trial in a youth court on charges of robbery and attempted robbery, or whether such proceedings would infringe the ECHR, Article 6 and constitute an abuse of process. Distinguishing SC v United Kingdom (2004) 40 EHRR 10, the court noted that the claimant would be tried in a youth court - a specialist tribunal which is able to give full consideration to and make proper allowance for the handicaps such as his, and is also able to adapt its procedures accordingly.
See also R (Wotton) v Central Devon Magistrates' Court [2003] EWHC 146 (Admin), in which it was held that the defendant's apparent inability to give proper instructions, make representations and participate in the trial meant that he was not fit to be tried on a summary charge of non-compliance with a noise abatement notice.
Author: MH
December 2005
D22.1 Introduction
See R (TP) v West London Youth Court [2005] EWHC 2583 (Admin) (discussed at D19.23 above).
Author: MH
D22.3 Determining Mode of Trial
In Crown Prosecution Service v South East Surrey Youth Court [2005] EWHC 2929 (Admin) the Court sought to reconcile the conflicting provisions of the Magistrates' Courts Act 1980, s. 24(1) with those of the Crime and Disorder Act 1998, s. 51A (added by the Criminal Justice Act 2003, sch. 3, para. 18) as presently in force.
The anomalies or points of conflict which may at present be faced by a youth court in deciding whether to send a child or young person to the Crown Court for trial are these:
- the Magistrates' Courts Act 1980, s. 24(1) requires summary trial of a person under 18 unless the offence is grave and may require a sentence of long-term detention. In this case the defendant must be committed for trial. The definition of "grave offence" in the 1980 Act differs from that of "a serious offence" under the Criminal Justice Act 2003; but
- the Crime and Disorder Act 1998, s. 51A as presently in force requires a child or young person to be sent to the Crown Court for trial if the offence is of the type specified in the Criminal Justice Act 2003, sch. 15 and, if the child or young person is found guilty, it appears that the criteria for an indeterminate sentence under s. 228 would be met.
The Criminal Justice Act, sch. 3, para. 9 (by which the Magistrates' Courts Act 1980, s. 24(1) will be amended so as to read "Where a person under the age of 18 years appears or is brought before a magistrates' court on an information charging him with an indictable offence he shall, subject to sections 51 and 51A of the Crime and Disorder Act 1998 and to sections 24A and 24B below, be tried summarily.") has not as yet been implemented; and nor, according to the Divisional Court, is implementation contemplated for many months.
Faced with this conflict, the Court held that a youth court cannot ignore either of these provisions. In considering the applicability of these inconsistent provisions in a particular case, justices should however bear in mind the following:
- The policy of the legislature, which is that those under 18 should, wherever possible, be tried in a youth court which is best suited to their particular needs.
- The guidance given in Lang [2005] EWCA Crim 2864 at [17](iv), which states that if a foreseen specified offence is not serious there will be comparatively few cases in which a risk of serious harm will properly be regarded as significant (and note what is said about sexual cases).
- In most cases, where a non-serious specified offence is charged an assessment of dangerousness will not be appropriate until after conviction when, if the dangerousness requirements are met, the child or young person can be committed to the Crown Court for trial.
- When a youth under 18 is jointly charged with an adult, an exercise of judgment will be called for by the youth court when assessing the competing presumptions in favour of (a) joint trial of those jointly changed and (b) the trial of juveniles in the youth court. Relevant factors include the age and maturity of the youth, the comparative culpability of each in relation to the offence, the previous convictions of each, and whether the trial can be severed without either injustice or inconvenience to witnesses.
Author: MH
15 December 2005
D22.8 Trial of juveniles: Sending to the Crown Court for Trial
In Crown Prosecution Service v South East Surrey Youth Court [2005] EWHC 2929 (Admin) the Court sought to reconcile the conflicting provisions of the Magistrates' Courts Act1980, s. 24(1) and the Crime and Disorder Act 1998, s. 51A (added by the Criminal Justice Act 2003, sch. 3, para. 18) as presently in force. The phrase "as presently in force" draws the reader"s attention to provisions as yet not brought into force which will, it may be hoped, eliminate the conflict.
The anomalies are these:
- The Magistrates' Courts Act 1980, s. 24(1) requires summary trial of a person under 18 unless the offence is grave and may require a sentence of long-term detention. In this case the defendant must be committed for trial. The definition of "grave offence" in the 1980 Act differs from that of "a serious offence" under the Criminal Justice Act 2003.
- The Crime and Disorder Act 1998, s. 51A as presently in force requires a child or young person to be sent to the Crown Court for trial if the offence is of the type specified in the Criminal Justice Act 2003, sch. 15 and, if the child or young person is found guilty, it appears that the criteria for an indeterminate sentence under s. 228 would be met.
- The Criminal Justice Act, sch. 3, para. 9 has not as yet been implemented nor, according to the Divisional Court, is implementation contemplated for many months.
A youth court cannot ignore either of these provisions. In considering the applicability of these inconsistent provisions in a particular case justices should bear in mind the following.
- The policy of the legislature, which is that those under 18 should, wherever possible, be tried in a youth court which is best suited to their particular needs.
- The guidance given in Lang [2005] EWCA Crim 2864 at [17](iv), which states that if a foreseen specified offence is not serious there will be comparatively few cases in which a risk of serious harm will properly be regarded as significant (and note what is said about sexual cases).
- In most cases, where a non-serious specified offence is charged an assessment of dangerousness will not be appropriate until after conviction when, if the dangerousness requirements are met, the child or young person can be committed to the Crown Court for trial.
- When a youth under 18 is jointly charged with an adult, an exercise of judgment will be called for by the youth court when assessing the competing presumptions in favour of (a) joint trial of those jointly changed and (b) the trial of juveniles in the youth court. Relevant factors include the age and maturity of the youth, the comparative culpability of each in relation to the offence, the previous convictions of each, and whether the trial can be severed without either injustice or inconvenience to witnesses.
This judgment is, to a degree, transitional, pending adoption of the entire legislative scheme embodied in the Criminal Justice Act 2003.
Author: LL
D23.1 Intervention Orders
The Drugs Act 2005 (Commencement No. 4) Order 2006 (SI 2006 No. 2136) brings s. 20 of the Act into force on 1 October 2006. Section 20 inserts new sections into the Crime and Disorder Act 1998. Section 1G of the 1998 creates the power to make intervention orders and s. 1H supplements that power. Intervention orders are orders which may be made at the same time as a court makes an ASBO in respect of a person aged over 18, following a report and consultation with prescribed persons. An intervention order requires the defendant to comply with requirements and directions. Intervention orders are declared to be designed to address anti-social behaviour stemming from drug use by providing forms of activities and treatment to ease the defendant's drug dependency.
The Crime and Disorder Act 1998 (Intervention Orders) Order 2006 (SI 2006 No. 2138) prescribes the persons to be consulted before applying for an intervention order, namely the National Health Service Trust, Primary Care Trust, National Health Service Foundation Trust or, where it is not itself the applicant for the associated ASBO, the local authority concerned with the provision of appropriate activities within the area in which it appears that the defendant resides or will reside (art. 2). Article 3 prescribes the person responsible for the provision or supervision of 'appropriate activities' (namely a trust or authority referred to in art. 2 which provides or supervises, or arranges for the provision or supervision of, such activities). Article 4 prescribes those activities and who constitutes an 'appropriately qualified person' to compile a report for the purposes of such an application.
Author: MH
D23.2 Nature of the Offending Behaviour
In R (on the application of Mills) v Birmingham Magistrates' Court [2005] All ER (D) 94 (Oct) (11 October 2005, Admin) it was held that some acts of theft may involve 'anti-social behaviour' within the meaning of the Crime and Disorder Act 1998, s. 1(1) (or s 1C(2)) but that furtive acts of shoplifting could not be shown to have had any such effect.
Author: MH
December 2005
D23.2 Nature of the Offending Behaviour
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: R (Chief Constable of West Mercia Constabulary) v Boorman [2005] EWHC 2559 (Admin).
Author: MH
D23.4 Relevant Authority
The Crime and Disorder Act 1998 (Relevant Authorities and Relevant Persons) Order 2006 (SI 2006 No. 2137) specifies the Environment Agency and Transport for London as 'relevant authorities' for the purposes of the Crime and Disorder Act 1998, ss. 1, 1B, 1CA and 1E. Where a person has acted in an anti-social manner on or in relation to land in respect of which the Environment Agency has a statutory function, it may apply for the purpose of protecting persons who are (or are likely to be) on or in the vicinity of such land. Transport for London's powers are limited to action relating to its land or vehicles or those of a subsidiary operator.
Author: MH
December 2005
D23.5 Sentencing for Breaches of ASBO
Guidance as to sentencing for breach of an ASBO has been provided by the Court of Appeal in L [2005] EWCA Crim 2487. The court emphasised the need for proportionality between the breach and the sentence: a severe sentence of imprisonment or custody may be appropriate in some cases, but not where the defendant has breached an order merely by (e.g.) entering an area or using a transport system from which he has been barred.
Where the defendant has not merely infringed the terms of the order, but has done so by committing an offence in breach of the order, the court dissented from the view (as previously expressed in Morrison [2005] EWCA Crim 2237) that it is wrong in principle to impose a heavier sentence for breach of the ASBO than for the offence in question. Leveson J said:
'We are conscious that in Morrison this Court held that if the breach of an ASBO is no more than the commission of an offence for which the maximum penalty is prescribed by statute, it is normally wrong in principle to pass a sentence for a breach calculated by reference to the maximum for breach of an ASBO. With respect, that appears to ignore the impact of antisocial behaviour on the wider public which was the purpose of the legislation in the first place; it also means that antisocial behaviour short of a criminal offence could be more heavily punished than antisocial behaviour that coincidentally was also a criminal offence. We thus prefer the contrary approach of this Court in Tripp [2005] EWCA Crim 2253 which itself reflects Braxton [2004] EWCA Crim 1374, [2005] Cr App R (S) 36.
See also Boness [2005] EWCA Crim 2395.
Author: MH
D23.5 Application Procedure
Note the Practice Direction (Magistrates' Courts) Anti-social Behaviour Orders: Composition of Benches issued by Sir Igor Judge P [2006] 1 All ER 886, by which:
- Where there is an application to a magistrates' court for an anti-social behaviour order under the Crime and Disorder Act 1998, s 1, or an application to a magistrates' court for an anti-social behaviour order to be varied or discharged under s 1(8), and the person against whom the order is sought is under 18, the justices constituting the court should normally be qualified to sit in the youth court.
- Applications for interim orders under s 1D of the Act, including those made without notice, may be listed before justices who are not so qualified.
- If it is not practicable to constitute a bench in accordance with para [1], in particular where to do so would result in a delayed hearing, this direction does not apply.
Author: MH
D23.5 Breach of ASBOs
In Nicholson (2006) The Times, 13 June 2006, the Court of Appeal declined to categorise the offence of breaching the terms of an ASBO (contrary to the Crime and Disorder Act 1998, s 1(10)) as one of strict liability. For the purposes of s 1(10), ignorance, forgetfulness or misunderstanding, whether arising from an error as to the terms of the order or lack of knowledge of where the defendant was at the material time, might be capable of constituting a defence of reasonable excuse. Whether such a mistake etc amounts to a reasonable excuse in a given case is a question of fact for the jury rather than a question of law for the judge.
Author: MH
D23.7 ASBOS following Conviction in Criminal Proceedings
Guidance as to the imposition of ASBOS following conviction has been provided by the Court of Appeal in Boness and other appeals [2005] EWCA Crim 2395.
- An ASBO must be precise and capable of being understood by the offender. The court should ask itself, before making an order, whether the terms of the order were clear so that the defendant would know precisely what it was that he was prohibited from doing.
- Following a finding that the defendant had acted in an anti-social manner (whether or not the act constituted a criminal offence), the test for making an order that prohibited the offender from doing something is one of necessity. Each separate order prohibiting a person from doing a specified thing must be necessary to protect persons from further anti-social acts. Accordingly, any order must be tailor-made for the individual defendant, not designed on a word processor for use in every case.
- Given the requirement that the order must be necessary to protect persons from further anti-social acts by the defendant, the purpose of an ASBO is not to punish. The use of an ASBO to punish a defendant is unlawful. A court should not allow itself to be diverted by a defendant's representative's seeking the imposition of an ASBO at the sentencing stage in the hope that the court might make such an order as an alternative to prison or other sanction. It might be better for the court to decide the appropriate sentence and then move on to consider whether an ASBO should be made or not after sentence has been passed, albeit at the same hearing.
- It follows that the court should not impose an order which prohibits a defendant from committing a specified criminal offence, if the sentence which could be passed following conviction for the offence should in itself be a sufficient deterrent. (5) A court should in any case be reluctant to impose an order which prohibits a defendant from committing a specified criminal offence. If a court wishes to make an order prohibiting a group of youngsters from racing cars or motor bikes on an estate or driving at excessive speed (anti-social behaviour for those living on the estate), then the order should not (normally) prohibit driving whilst disqualified. It should prohibit, for example, the offender whilst on the estate from taking part in, or encouraging, racing or driving at excessive speed. It might also prevent the group from congregating with named others in a particular area of the estate. Such an order gives those responsible for enforcing order on the estate the opportunity to take action to prevent the anti-social conduct, it is to be hoped, before it takes place.
- The terms of the order must be proportionate and commensurate with the risk to be guarded against. That is particularly important where an order might interfere with a defendant's right under the European Convention on Human Rights as protected under the Human Rights Act 1998.
Click here for the judgment in Boness.
An ASBO imposed under the Crime and Disorder Act 1998, s. 1C does not become invalid merely because the form setting out the terms of the order and the conviction giving rise to it fails to specify the behaviour that was found to have been 'likely to cause harassment or distress to any person': see English [2005] EWCA Crim 2690.
Click here for the full text of the judgment in English.
Author: MH
D23.7 ASBOS Following Conviction in Criminal Proceedings
As to the circumstances in which it may be proper for a heavier sentence to be imposed for breach of an ASBO than could be imposed for an offence by means of which the ASBO was breached, see Stevens (2006) The Times, 24 February 2006, in which a sentence of nine months' imprisonment was imposed (and upheld on appeal) for breach of an ASBO relating to drunkenness in public.
Williams [2005] All ER (D) 03 (Oct), Kirby [2005] EWCA Crim 1228 and Boness [2005] EWCA Crim 2395 were each distinguished.Author: MH
D23.7 ASBOS following Conviction in Criminal Proceedings
Loosely drafted ASBOs continue to cause difficulties for the criminal courts. W v DPP [2005] EWHC 1333 (Admin) was considered but not approved by the Divisional Court in Crown Prosecution Service v T [2006] EWHC 728 (Admin), in which Richards LJ and Clark J 'respectfully declined' to follow the approach adopted in the earlier case. Faced with an even more loosely drafted clause in which the respondent was prohibited from 'acting in an anti-social manner in the city of Manchester', the court held that, despite its manifest defects, such an order had to be treated as valid until and unless it was set aside. On the other hand, It was open to a criminal court or judge to consider whether the relevant provision lacked sufficient clarity to warrant a finding that the respondent's conduct amounted to a breach of the order; whether the lack of clarity provided a reasonable excuse for non-compliance with the order; and whether, if a breach was established, it was appropriate in the circumstances to impose any penalty for the breach.
Author: MH
D23.12 Relevant Statutes
The Serious Organised Crime and Police Act 2005 (Amendment) Order 2005 (SI 2005 No. 3496) amends provisions of the 2005 Act, including s. 142(2) which amended the Crime and Disorder Act 1998, s. 1. The amendments corrects a typographical error in that the s. 142 amendment was intended for s. 1(1A) of the 1998 Act, not s. 1A(1).
Author: MH
D24.6 Deciding Outcome of Appeal and Giving Judgment
In Coates [2004] 1 WLR 3043, [2004] EWCA Crim 2253, the Court of Appeal held that, notwithstanding that a decision on an appeal had been reached by all three judges, the appeal could not be said to be determined if the decision was not binding on the judges themselves. This was in the context of a reserved judgment, the result of which had been agreed by all the judges but not embodied in a written judgment to which all members of the court had agreed. The same case deals with the situation where the court gave its decision in open court but announced that reasons would be given later. Here, the court was bound and reasons might be produced by two members. In Steele [2006] EWCA Crim 2000, (2006) The Times, 5 September 2006, the Court holds that a decision is final, within the meaning of the Supreme Court Act 1981, s. 55, when the draft judgment is released to counsel, notwithstanding that one member of the court was not present on that occasion. A decision is properly to be regarded as binding on the judges themselves when all three judges indicated their approval of the draft and authorised its release to counsel. Accordingly, the Court lacked jurisdiction to receive further submissions on the merits of the case.
Click here for the full text of the judgment.
Author: LL
D24.8 Trial judge's certificate
In Inskip [2005] EWCA Crim 3372 the Court of Appeal warned trial judges against over-readiness to certify a case as fit for consideration on appeal. The court expressed concern as to fact that the trial judge had granted a certificate to appeal in the case before them. Such a certificate should be granted only in truly exceptional circumstances. The normal rule is that it is for the Court of Appeal to consider whether a case is suitable for the granting of leave (Bansal [1999] Crim LR 484). The mere fact that a judge has had a difficult exercise of his discretion to decide whether or not a case should go to the jury is plainly not sufficient to amount to a ground of appeal.
Author: MH
D24.12 Appeal against Conviction with Leave
Beechook [2005] EWCA Crim 3080 concerns the duty of counsel where applications are made to extend time and for leave to appeal where it is sought to contest a conviction for murder on the grounds of diminished responsibility based upon medical or psychiatric evidence some or many years after the date of the original conviction. In such a case, counsel should make it clear in formulating their notice of grounds and their advice in support of that application that the applicant has been advised that, in the event of the Crown contesting the new evidence of diminished responsibility, a retrial is likely. In the instant case the applicant, whose conviction took place many years before and whose tariff period had nearly expired, sought and was granted leave to abandon her applications on becoming aware that, in the event that it was heard and her application for leave acceded to, the result would be a new trial. The Court's concern was over the public money wasted as a result. The procedure suggested is intended to avoid such waste.
Author: LL
D24.13 Appeal against Conviction Following a Plea of Guilty
Brown (John Lewis) [2006] EWCA Crim 141 affords a further example of the Court of Appeal's willingness, in exceptional cases, to allow an appeal notwithstanding the defendant's guilty plea. This was a case, referred to the Court by the Criminal Cases Review Commission, arising from the activities of the notorious West Midlands Serious Crime Squad. In brief the defendant, charged with the robbery of a post office, signed an incriminating statement which, he alleged, was the result of improper pressure. The defendant was threatened that his status as an informer would be exposed unless he made a confession. This status was, at the time the statement was made, not known to his family and associates though it became so, by the time the plea was entered, as a result of erroneous disclosures by the prosecution. The appellant asked for but was denied the services of a solicitor and, by means of a false record, the police sought to conceal that fact.
Apart from his guilty plea, the evidence against the appellant was either inconclusive or fatally tainted. Had matters the subject of concessions on appeal by the prosecution been known to the prosecution at the time of trial, they would have been disclosed. The prosecution would have offered no evidence against other defendants charged with the appellant. Had the matters emerged in the aftermath of the appellant's plea, the prosecution would not have opposed any application to change plea and would thereafter have offered no evidence. Had the appellant fought the case and been convicted in the absence of the disclosures above referred to, there would have been no argument open to the Crown to support the conviction.
In the light of the above concessions, the Court concluded that there existed in this case very exceptional circumstances where, despite his plea of guilty, the appellant's conviction should be quashed. These, it would seem, though the Court does not particularise them, relate both to duress and to abuse of process, the grounds upon which the CCRC referred the matter to the Court.
Author: LL
D24.17 Determination of Appeals against Conviction
In Ashton [2006] EWCA Crim 794, the Court of Appeal examined the problem of procedural failures and whether (or when) such failures should be held to render the affected proceedings (and any conviction or sentence) invalid. Having considered the ruling of the House of Lords in Soneji [2005] UKHL 49, Fulford J said:
"It is now wholly clear that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised ("a procedural failure"), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue.
On the other hand, if a court acts without jurisdiction - if, for instance, a magistrates' court purports to try a defendant on a charge of homicide - then the proceedings will usually be invalid."
The court also approved this dictum of Lord Woolf CJ in Sekhon and others [2002] EWCA Crim 2954:
"We would expect a procedural failure only to result in a lack of jurisdiction if this was necessary to ensure that the criminal justice system served the interests of justice and thus the public or where there was at least a real possibility of the defendant suffering prejudice as a consequence of a procedural failure."
Author: MH
D24.17 Determination of Appeals against Conviction
In Ashton [2006] EWCA Crim 794, which was noted in last month's update, the Court of Appeal examined the problem of procedural failures and whether (or when) such failures should be held to render the affected proceedings (and any conviction or sentence) invalid. Following the ruling of the House of Lords in Soneji [2005] UKHL 49, 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.
Applying that approach, the Court of Appeal in Clarke [2006] EWCA Crim 1196, held that the absence of the required signature on a voluntary bill of indictment did not invalidate the subsequent trial or convictions. It appears that Morais [1988] 3 All ER 161 (see D10.2) cannot stand with Soneji or Ashton and it was not followed in Clarke, where 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
D24.17 Compromising appeal
In Owens [2006] EWCA Crim 2206 the Court of Appeal disapproved a deal the effect of which would have been to compromise an appeal by two brothers charged with two counts of conspiracy, the first of fraudulent evasion of excise duty which involved laundering red diesel and the second of money laundering. Prosecution counsel agreed not to oppose an appeal on the second charge provided that the first charge and the sentences imposed in respect of it were not challenged. In a stinging rebuke, the Court states that an agreement by counsel not to oppose an appeal must have a logical or intellectual basis. The matter must be fully opened to the Court. A compromise which amounts to no more than a deal is unacceptable: it shows a fundamental misunderstanding of the function of the Court in determining appeals within the Criminal Appeal Act 1968, s. 2, namely, to allow an appeal against conviction if it considers the conviction to be unsafe and otherwise to dismiss the appeal.
Click here for the full text of the judgment.
Author: LL
D24.24 Inconsistent verdicts
B&Q plc [2005] EWCA Crim 2297 is of interest both because it contains an extensive review of the authorities relating to inconsistent verdicts and because it throws doubt on the proposition in some of them that verdicts, though logically inconsistent, may yet be saved if a legitimate train of reasoning can be found to account for the inconsistency.
This was a prosecution under the Health and Safety at Work etc. Act 1974. Two counts are relevant to the judgment. Both relate to the same instance of bad driving of a fork lift truck. The driver reversed inappropriately, injuring a fellow employee and fatally crushing a customer against metallic shelving. The issue for the jury in respect of the employee was whether the defendant company failed in its duty to ensure so far as was reasonably practicable the health, safety and welfare at work of his employee (s. 2(1)). In respect of the customer the issue was whether the company had conducted its activities in such a way as to ensure, so far as was reasonably practicable, that persons not in its employment would not be exposed to risks to their health and safety (s. 3(1)). The jury was directed to consider each count separately. The jury acquitted the company on the count relating to its employee but convicted it on the count relating to its employee.
The Court concluded that the verdicts were not inconsistent even though the dangerous operation of the fork lift truck was the same in both instances and even though a banksman should have been provided to ensure the safety of operations. Different considerations applied to the reasonably practicable steps which might be considered necessary in the distinct cases of employees and customers. In particular, employees wore distinctive red clothing, had received training, and might be thought to be aware of the dangers implicit in fork-lift operation. A higher standard of care could well be thought to apply to the operator in respect of customers.
There was, thus, no illogicality in the verdicts, a prerequisite to success on an appeal on this ground and the defendant's appeal failed.
The Court discussed the further issue of an explanation which might save a verdict even when an illogicality appears. The Court noted the comment of Lord Bingham CJ in W(M) (trans. 98/3892, 30 March 1999 unreported) that a jury cannot be said to have acted illogically when faithfully following the directions of the trial judge. This suggests that in such cases the true ground of appeal will not be that of jury illogicality but rather that the judge's directions were defective. Lord Bingham CJ considered that Sir John Smith's doubt as to whether a legitimate train of reasoning, itself speculative, could lead to logically inconsistent verdicts was appropriate. Lord Bingham CJ further saw virtue in Sir John Smith's suggestion that once verdicts are shown to be inconsistent the onus is on the Crown to justify the verdict or verdicts challenged. This, it would seem, is not a ringing endorsement of the proposition in some of the established cases that verdicts which are illogical, whether by reason of inappropriate directions or an illogical approach to proper directions, may be saved by recourse to some consideration extrinsic to the process.
It may well be that the line of cases on illogical verdicts will require reconsideration in the light of Lord Bingham's comments and the discussion of them in the instant case.
Cilgram [1994] Crim LR 861 is treated as a case in which verdicts may be quashed even though there is not logical inconsistency because the particular facts and circumstances of the case render the verdict unsafe.
Click here for the full text of the judgement
Author: LL
Second Update - 24 November 2005
D24.24 Inconsistent Verdicts: Unreasonable Verdict
Green (Edward Lloyd) [2005] EWCA Crim 2513 is an illustration of the proposition that the Court of Appeal will quash a verdict where, although it can in theory be reconciled with a contrary verdict given in relation to a co-accused, it appears in the light of the facts of the case and the way in which the case was presented to the jury to be unreasonable. This was a case in which both accused were charged with murder, but one alone was charged with robbery. The evidence strongly suggested that one co-accused, S, had taken possession of a knife and stabbed the victim. That accused was, however, convicted of manslaughter only while Green was convicted of murder.
It was held that, while the verdict were not logically inconsistent because in theory they could be reconciled, having regard to all the facts and to the way in which the Crown presented its case, the verdict against Green was unreasonable. Accordingly, a verdict for manslaughter was substituted.
The Court further notes that in complicated cases the trial judge should prepare an aide memoire with relevant questions for the jury. In this case it was clear that the jury had difficulty grappling with the case.
Click here for full text of the judgment.
Author: LL
D24.25, D13.13 Conduct of trial judge: Pre-trial hearings
In Bryant [2005] EWCA Crim 2079 the Court of Appeal again considers the duty of a trial judge to ensure a fair trial. In this case the complaint was that the trial judge, by blatantly appearing to favour the prosecution case, deprived the defendant of a fair trial. The Court, in ordering a new trial, pointed out that the judge can present the case to the jury as a strong prosecution case if that is what it is, but the summing up must be fair and balanced and the judge must not appear to favour one side over the other.
Within the limits set by the need to ensure that the defendant receives a fair trial, the Court of Appeal will support efforts by the trial judge to move a case forward at a reasonable speed. Counsel cannot complain of being rebuked, even in a robust fashion, whether by way of encouragement or exhortation. In assessing whether the defendant has received a fair trial, not only the words of the transcript but also proven behaviour by the judge are relevant.
A defence case statement which consists merely of a general denial of the counts in the indictment accompanied by such a statement as that the defendant takes issue with any witness purporting to give evidence contrary to his denial is woefully inadequate. Such a document does not meet the purposes of a defence case statement.
Click here for full text of the judgment.
Author: LL
D24.42 Powers of the Court of Appeal when Determining an Appeal against Sentence
As to the power of the Court of Appeal to take account (under the Criminal Appeal Act 1968, s. 11(3)) of the appellant's co-operation with the police etc where such assistance is provided after conviction and sentence, see A [2006] EWCA Crim 1803.
Author: MH
D25.1 The Rules
The Criminal Justice Act 2003 (Mandatory Life Sentences: Appeals in Transitional Cases) Order 2005 (SI 2005 No. 2798) makes provision similar to the provision in the Criminal Appeal Act 1968 for the purpose of the new transitional appeal introduced by the Criminal Justice Act 2003, sch. 22, para. 14(1). Paragraph 14(1) provides a right of appeal to the Court of Appeal and the House of Lords, if appropriate, to prisoners who have either had their minimum term of a mandatory life sentence reviewed or determined by the High Court under the transitional provisions in sch. 22 (see Blackstone's Criminal Practice, E4).
Author: MH
D25.9 Leave to Appeal Out of Time
In Ramzan and others [2006] All ER (D) (July) the Court of Appeal emphasised that, in a case where a conviction was entirely proper under the law as it was understood at the time of trial, leave to appeal out of time should be granted only where substantial injustice would otherwise be done to the defendant. Where the sole or principal point taken by a defendant is that his convictions, though lawful and proper at the time, should now be regarded as unsafe because a new decision has altered everyone's understanding of the law, his application should be referred directly to the full court by the Registrar, so that the merits of it can be investigated, with representation, perhaps on both sides, and a reasoned decision made whether or not there is substantial injustice.
Author: MH
D25.17 Power to Receive Evidence on Appeal
Neaven [2006] EWCA Crim 955 provides a valuable summary of the principles which govern the reception of fresh medical evidence relating to diminished responsibility where that defence was not raised at trial. In so doing the court remains faithful to the principles that an accused should advance his whole case at trial, and in particular cannot raise evidence of diminished responsibility where his decision not to run that defence at trial was tactical.
The appellant stabbed to death a man against whom he had a grudge. He had a long history of violence and was diagnosed as suffering from a personality disorder. He had, however, no history of schizophrenia and presented no symptoms of schizophrenia that would have been obvious to a layman. The accused's defence was one of self-defence. Counsel at trial advised against adducing the appellant's past history because it might lead the jury to regard him as dangerous. The appellant was convicted of murder. Unknown to the defence and prosecution, a locum forensic psychiatrist at Durham prison where the appellant was held on remand was moving towards a diagnosis of schizophrenia. After conviction the accused was sent to Ashworth Hospital for assessment and schizophrenia was diagnosed. At the appellate stage, both defence and Crown psychiatrists agreed that the appellant suffered from schizophrenia. The Crown psychiatrist differed from the defence psychiatrist's assessment that the appellant's condition might have contributed to his decision to refuse a psychiatric assessment before trial.
The Court summed up the effect of the authorities thus (at [41]): 'We draw from these authorities the following guidance. (1) That the obligation on a defendant to advance his whole case at trial, and the scepticism directed towards tactical decisions, remain fundamental. (2) That it therefore takes an exceptional case to allow it to be in the interests of justice to admit and give effect to fresh evidence, not relied on at trial, designed to promote a new defence of diminished responsibility. However, subject to this, (3) each case turns on its own facts. Therefore, (4) where the evidence of mental illness and substantial impairment is common ground or otherwise clear and undisputed, it may be in the interests of justice (in the absence of opposition from the appellant himself - see Kooken) to admit it. (5) This is especially so if the potential vice of tactical decisions is met by undisputed evidence that such decisions were affected by the defendant's illness itself. (6) The emergence only after conviction of evidence of mental illness and of the potential of a defence of diminished responsibility is of little weight, unless perhaps there is unanimity as to the conditions necessary for such a defence at the time of offence. In this connection it may be observed that only in the special case of Kooken was clear and undisputed fresh evidence on appeal of a good defence of diminished responsibility to the killing not acted upon in this court.'. . .
Two special factors applied which led to the reception of the evidence and a substitution of manslaughter. First, that there was evidence of diminished responsibility was now common ground but unknown at trial. The tactical decision not to explore the accused's personality at trial was not made with knowledge and insight such as should bind the accused. Secondly, the Crown psychiatrist's view that the accused's schizophrenia had no effect upon his decision was not sustainable on the whole of the evidence.
Click here for full text of the judgment
Author: LL
D25.17 Power to Receive Evidence
Ahluwalia [1992] 4 All ER 889 and Borthwick [1998] Crim LR 274 were considered in Neaven [2006] EWCA Crim 955. This was a case in which a defence of diminished responsibility that would have been open to the defendant was not advanced at trial, because neither he nor his legal team had then been aware of his schizophrenia. He advanced a defence of self-defence but was convicted of murder.
Allowing this evidence on appeal, and substituting a conviction for manslaughter, with a hospital order under the Mental Health Act 1983, s 37 and a s 41 restriction, the Court of Appeal held that, although it would only be in rare cases that evidence of this kind could be adduced for the first time on appeal, in this case the defendant's illness had also affected his ability to give rational instructions, and in all the circumstances it was necessary or expedient in the interests of justice for the new evidence to be received.
Author: MH
D25.19 Approach of the Court of Appeal to 'Evidence' Appeals
Pendleton [2001] UKHL 66 was considered by the Court of Appeal in Steele and others [2006] EWCA Crim 195, in which evidence had come to light since the trial which showed a key prosecution witness had been in contact with (and had received payment from) media sources prior to the trial.
It is obvious, said the Court, that contacts and contracts between a witness and media interests in advance of a trial have a potential to engender injustice, especially when they are unknown to the defence at the time of trial and cannot be used in cross-examination of the witness. But it did not follow that the convictions in this case were unsafe. The witness was known to be a person of bad character and the jury were fully aware of that. The essentials of his account had been imparted to police officers in interview and reduced to witness statements before he had any dealings with members of the media. If the jury had known about the media contacts then, although such contacts are to be deprecated, it was difficult to see how they could have added significantly to the cross-examination armoury in the circumstances of this case.
Author: MH
D25.25 Abondoning an appeal
The applicant in Grant [2005] EWCA Crim 2018 applied for an order that his Notice of Abandonment of Appeal be treated as a nullity. It is established that the only ground for setting aside an abandonment is nullity (Medway [1976] QB 779). Where a Notice of Abandonment is filed by the applicant's solicitor, the only question for the court is whether the mind of the applicant went with the act of the applicant in lodging the form.
Here, the applicant intimated to his solicitors that he wished to abandon his appeal against sentence. The solicitors wrote to the Registrar who advised them that a formal notice of abandonment was required. The solicitors wrote to the applicant to say that unless they heard from him to the contrary within 7 days they would lodge the Notice with the Registrar. Not having heard from the applicant, they lodged the notice. The solicitors' letters had, however, been delayed because the applicant changed prisons. The applicant, too late, informed his solicitors that he wished to proceed with his appeal.
The Court treats the relevant issue as whether the mind of the applicant went with the act of the solicitor in lodging the form. This is a question of fact. At all times the applicant knew of his letter to his solicitors and what the effect of his instructions would be unless they were countermanded. All that the applicant lost from the delay in correspondence was the chance to change his mind, but his mind went with the instructions to abandon and the Court lacked jurisdiction to set aside his notice of abandonment.
The Court further remarked, however, that the applicant need feel no sense of injustice. His criminal record was such that any application for leave to appeal against sentence was doomed to failure.
Click here for the full text of Grant.
Author: MH
D26.1 Reference by the Criminal Cases Review Commission
In Beardall and Lord [2006] EWCA Crim 876, the appellants had lost their appeals against convictions for fraud, having been released on bail pending those appeals (see [2006] EWCA Crim 577). They had by this stage already served a large part of their substantial prison sentences, but faced being returned to prison to serve the remaining months; and because the Court of Appeal had previously dismissed applications for leave to appeal against sentence, it would under normal circumstances have had no jurisdiction to amend those sentences in any way.
Counsel for the appellants accordingly submitted that the court might acquire jurisdiction to interfere with the sentences so as to prevent their return to custody by way of a reference by the Criminal Cases Review Commission under the Criminal Appeal Act 1995, s 9, prior to the judgment dismissing the conviction appeal being handed down.
Rejecting this submission, the court held that the device of seeking a reference from the Criminal Cases Review Commission to enable the court to have the jurisdiction to interfere with a defendant's sentence was not intended by Parliament to be used routinely. There might be circumstances in which such a device could be used to avoid injustice. However, that would have to be an exceptional case, and this was not such a case.
Author: MH
D26.1 Reference by the Criminal Cases Review Commission
In Sidall [2006] EWCA Crim 1353, the Court of Appeal expressed its dissatisfaction with various procedural problems that had arisen in the course of a reference by the CCRC, and in particular by "the wholly unsatisfactory way" in which various documents had been presented to the court, so that it was often difficult to ascertain what materials had been available at trial and what had emerged subsequently.
The court issued the following instructions:
57. The overriding objective, as set out in the Criminal Procedure Rules 2005 (SI 2005 No 384) ("the Rules") Part 1 Rule 1.1(2)(e), requires all criminal cases to be dealt with "efficiently and expeditiously". This equally applies to criminal appeals; see Part 2, Rule 2.1(1)(b). All participants in criminal proceedings must prepare and conduct the case in accordance with the overriding objective; see Part 1, Rule 1.2 (1)(a). . . . Dealing with the case "efficiently and expeditiously" in a complex and serious case of this kind (where there were numerous documents, late disclosure, and changing issues on the appeals) obviously required counsel and solicitors for all parties to co-operate in producing to the court an agreed, composite series of numbered bundles, put together in a logical order, properly labelled, indexed and paginated, with dividers where necessary. It was essential not only to ensure that each member of the court had the bundles in the same form as counsel but also that the skeleton arguments sufficiently and accurately identified any relevant document by reference to the appropriate bundle, tab and page number. That should have been done and bundles and skeletons lodged with the Criminal Appeal Office in good time, so as to have enabled satisfactory pre-hearing preparation to have taken place. Consideration should also have been given as to whether a core bundle would have assisted the court.
58. It is quite wrong that any reference should be placed before the court more than six months after the date of its referral without good reason sanctioned by the court. To this end consideration must be given to complying with some such time-table as we now suggest:-
- Within 6 weeks of the date of referral, the appellant's solicitors must cause all relevant papers to be bundled into files and paginated; counsel must lodge a skeleton argument referring to the documents as paginated and apply to the Criminal Appeal Office for a date (giving estimated length of hearing) and any other directions considered necessary;
- Within 4 weeks thereafter, the Crown must propose the inclusion of any further documentation which it requires;
- Within 2 further weeks, the Crown must lodge its skeleton with any suggested change to the estimate it deems to be necessary;
- Any response skeleton to be lodged within 2 further weeks thereafter;
- Consideration be given to the question whether a core bundle should be provided for the hearing.
59. Any material breach of these requirements will run the risk of the appeal being stood out from the list at the risk of a wasted costs order being made. CCRC references must be treated with the respect they deserve.
Author: MH
D26.4 Reference for Review of Sentence
It is not the appellate court's function under the Criminal Justice Act 1988, s 36, to substitute, in the light of newly available evidence, its own view as to what sentence ought to be imposed. The court's task is to decide whether the judge's sentence, in the light of material before him, could properly be characterised as unduly lenient: A-G's Ref (No. 19 of 2005) [2006] EWCA Crim 785, (2006) The Times, 3 May 2006.
Author: MH
D26.4 Reference for Review of Sentence
In A-G's References (Nos 14 and 15 of 2006); French and another [2006] EWCA Crim 1335 the Court of Appeal made these observations concerning the question of allowance for 'double jeopardy':
"62. Where a defendant's offence was so serious that he still has a lengthy period of imprisonment to serve at the time of the Attorney General's reference, any distress and anxiety at the prospect of the sentence being increased will be much less significant. We do not accept the Attorney General's extreme submission that there is no place for consideration of double jeopardy in such circumstances. So to hold would constitute an unwarranted interference with the discretion of the court when determining a sentence. We agree, however, that in such circumstances the principle is of limited application and that there will be occasions where a judge can properly decline to make any discount for double jeopardy.
63. The same is true where the Attorney General's reference relates to the length of a minimum term set within a discretionary life sentence. Section 272 of the 2003 Act expressly precludes the court from having regard to double jeopardy when reviewing the minimum term under a mandatory life sentence. Parliament left it open to the court to allow for double jeopardy when reviewing the minimum term under a discretionary life sentence. Whether or not an allowance should be made in those circumstances must depend upon the facts of the particular case. This court has said that in those circumstances some discount should be made for the element of double jeopardy but not as much as where the overall total sentence was affected by the decision of the court - A-G.'s Ref. No. 6 of 2001 [2001] 1 Cr App (S) 72 at 76. This should not, however, be read as saying that a discount must always be made, regardless of the particular facts."
Author: MH
D27.30 Judicial review-trial on indictment
R (Snelgrove) v Crown Court at Woolwich [2004] EWHC 2172 (Admin), [2005] 1 WLR 3223 has only recently been reported in the main law reports though decided on 29 September 2004. In brief, the Divisional Court held that a decision by a Crown Court judge before arraignment not to dismiss a charge against the defendant on grounds of alleged weaknesses in the Crown's evidence is a decision relating to a trial on indictment within the meaning of the Supreme Court Act 1981, s 29(3) and is therefore not susceptible to judicial review. Such matters as the strength of the evidence are for exploration at trial. The issue is not one of discretion but of jurisdiction. It would seem that Central Criminal Court, ex parte Director of Serious Fraud Office [1993] 1 WLR 949 is no longer good authority.
Click here for the full text of the judgment.
Author: LL
October 2005
D29.5 Applying for a representation order
The Criminal Defence Service (General) (No. 2) (Amendment) Regulations 2005 (SI 205 No. 2784) amend the Criminal Defence Service (General) (No. 2) Regulations 2001 (SI 2001 No. 1437) so as to provide for an increase in the financial eligibility limits for advice and assistance specified in reg. 5 from £192 to £194 (income eligibility limit for advocacy assistance – reg. 5(3)) and from £91 to £92 (income eligibility limit for advice and assistance – reg. 5(5)).
Author: MH
D29.8 Recovery of Costs
The Criminal Defence Service (Recovery of Defence Costs Orders) (Amendment) Regulations 2005 (SI 2005 No. 2783) amend the Criminal Defence Service (Recovery of Defence Costs Orders) Regulations 2001 (SI 2001 No. 856), reg 9 in order to increase the level of income a funded defendant must have before his income is taken into account for the purpose of calculating his financial resources from 25,000 to 25,250.
Author: MH
D29.12 Proper Approach to Making of a Defendant's Costs Order
Defendants who accept a caution and are then acquitted when the prosecution offer no evidence do not thereby lose their rights to a costs order. See R (on the application of Stoddart and another) v Oxfordshire Magistrates' Court [2005] All ER (D) 97 (Oct) (11 October 2005, Admin).
Author: MH
D29.12 Proper Approach to Making of a Defendant's Costs Order
In Hussain v United Kingdom (App No 8866/04) (2006) The Times, 5 April 2006, the European Court of Human Rights held that there had been a violation of the applicant's rights under ECHR, Article 6(2) when, following the prosecution's failure to offer any evidence against him, he was denied an order for costs on the grounds that there was 'clear and compelling evidence of his guilt on the court papers'. There was no evidence that he had intimidated or otherwise interfered with any prosecution witnesses (although it was for such an offence that he was originally charged) and it followed that he was being denied his costs purely on the basis of an unproven suspicion of guilt.
Author: MH
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