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Companion Website
Blackstone's Criminal Practice 2006
September 2005
September Update
The September Update was prepared by Michael Hirst, Professor of Criminal Justice, De Montfort University, Leicester, with assistance from Laurence Eastham, Editorial Co-ordinator, Blackstone's Criminal Practice.
The September update primarily covers developments occurring or reported in August 2005.
- Part A: General Principles of Criminal Law
- Part B: Offences
- Part C: Road Traffic Offences
- Part D: Procedure
- Part E: Sentencing
- Part F: Evidence
- New Statutory Instruments
PART A GENERAL PRINCIPLES OF CRIMINAL LAW
A5 Parties to Offences
A5.5 The Scope of the Joint VentureAttorney-General's Reference (No. 3 of 2004) [2005] EWCA Crim 1882 provides an interesting decision on liability for manslaughter and the scope of joint enterprise. H was re-arraigned, on a re-trial, on indictment for manslaughter. The Crown proposed to put the case on the footing that H, the accessory, sent K and C to R to apply pressure on him through terror, that H knew that K and C would have a loaded firearm with them, and knew that in order to maximise the pressure on R the firearm might be deliberately discharged near R. It was further agreed that the judge had to decide the issue on the basis that H did not intend physically to kill or injure R nor had he foreseen the possibility of physical injury or death to R. It was apparently thought that not to make this assumption would be inconsistent with the defendant's acquittal for murder.
The defence argument, which succeeded on arraignment, was that the assumed facts were not such as to found a conviction for manslaughter. The Attorney General referred the following questions to the Court:
- "1. Where a secondary party to a joint enterprise contemplates that the carrying out of the joint enterprise will involve the commission of an act intended to frighten the victim (for example by the discharge of a firearm) and the principal carries out the act with an intention to kill or cause serious bodily harm thus causing the death of the victim, does the variation in the intent of the participants at the time the act is done preclude the act from being part of the joint enterprise or may a jury nevertheless convict the secondary party of manslaughter?
- Where the Court of Appeal quashes the conviction and orders the retrial of a person who was originally convicted of manslaughter on an indictment for murder, may the prosecution present its case at the retrial on the basis of facts which, if correct, would establish guilt of manslaughter as a lesser included offence of murder?"
The Court of Appeal on hearing the reference agreed with the defence argument.
The answer to H's liability depended on the scope of the joint enterprise. The assumed facts were thoroughly artificial but, on the basis of them, it could not be said that H foresaw that the gun would be fired in circumstances in which H knew or foresaw that harm to R might occur. Here, K's act in firing the gun so as to kill R or cause him grievous bodily harm was of a fundamentally different character to any act contemplated by H. On the assumed facts, what K did was fundamentally different from what H foresaw might occur. Had H been party to a common design to cause some harm to R then he, having authorised the firing of the gun, albeit to frighten, would have been liable for manslaughter because he would have realised that the party, in this case K, might intentionally cause some harm to the victim, R.
But here, on the assumed facts, H did not foresee the possibility of any harm to R let alone intentional harm.
This case contains a very full discussion of the authorities. The Court notes that the law is clearly laid down in Powell and English [1997] UKHL 45, and earlier authorities which are inconsistent with that judgment are no longer good law.
Click here for full text of Powell and English.
PART B OFFENCES
B1 Homicide and Related Offences
B1.36 Likely to Cause Bodily Harm
Attorney-General's Reference (No. 3 of 2004) [2005] EWCA Crim 1882 provides an interesting decision on liability for manslaughter and the scope of joint enterprise. See A5.5 above.
B1.39 Manslaughter by Gross Negligence
In a prosecution for manslaughter by negligence, arising in Yaqoob [2005] EWCA Crim 1269 from the failure of a partner/manager to inspect the tyres of a minibus involved in a fatal accident, it was entirely open to the jury to find that there was a duty to inspect and maintain beyond that required for a MOT test, council inspections and other duties imposed by regulation. It was well within the competence of a jury to assess that duty without any expert evidence; these were not technical issues beyond their competence and they did not need expert help.
B14 Offences Against the Administration of Justice
B14.31 Acts which may amount to perverting the course of justice
Iaquaniello [2005] EWCA Crim 2029 was a prosecution for perverting the course of justice, where the Crown must prove in relation to the act charged that it tended and was intended to pervert the course of justice. It was held that the prosecution need not be more specific than that: It is not necessary to prove that a particular act would pervert the course of criminal rather than civil justice. The acts in the instant case were allegedly committed either to support a civil claim against the Metropolitan Police Commissioner or to provoke significant police investigations.
B15 Corruption
B15.7 Meaning of Corruptly
In Singh v The State [2005] UKPC 35, which concerned actions in Trinidad and Tobago, the Privy Council considered corruption legislation which is similar to that in England and Wales. The issue was whether a person who instigates a transaction with another, which he purports to that other is intended corruptly to influence a public officer (in this instance a magistrate), can be guilty of doing an act which the legislation forbids as tending to corrupt public officers in soliciting or receiving money for the express purpose of bribing them, even though the person instigating the transaction does not intend in fact to bribe the public officer. It was held that it is not necessary to prove that any member, officer or servant of a public body was in fact aware of what was going on when the improper offer was made or the bribe was passed, provided that the apparent purpose of the transaction was to affect the conduct of such a person corruptly: Smith [1960] 2 QB 423 was followed and Harrington (CACD No 00/1780/X2, 28 September 2000 (unreported)) was approved.
Click here to view the full text of Singh v The State.
PART C ROAD TRAFFIC OFFENCES
C8 Endorsement, Penalty Points and Disqualification
C8.5 Disqualification Generally
In Chivers [2005] EWCA Crim 2252, the defendant was involved in a series of serious road rage incidents, culminating in driving his car at an off-duty police officer. He pleaded guilty to one count of criminal damage, one of affray, and one of dangerous driving. He was sentenced to a total of 12 months' imprisonment, and was disqualified from driving for a period of five years, and until an extended re-test had been taken. The appeal was limited to the length of disqualification especially on the basis that the length of the disqualification would impact on the defendant's employment prospects on his release from custody.
The appeal was allowed. It was an important principle that a disqualification from driving should not, except in the more serious cases, be so severe that it would interfere with a defendant's rehabilitation.
PART D PROCEDURE
D2 Courts, Judges and Parties
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.
D10 The Indictment
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.
D12 Juries
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 fr the full text of Porter v Magill.
D25 Procedure on Appeal to the Court of Appeal
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.
PART E SENTENCING
E22 Recommendation for Deportation
E22.2 Continues presence in the UK to detriment of community
In Benabbas [2005] EWCA Crim 2113, the offender had pleaded guilty to a single count of using a false instrument, namely a stolen and forged French passport, contrary to the Forgery and Counterfeiting Act 1981. On 4 April 2005 he was sentenced to seven months' imprisonment: the judge also recommended him for deportation. He appealed only against the recommendation for deportation. The passport had been stolen as part of a bulk theft of unissued French passports in an armed robbery in Marseille on 22 July 2003. One of these passports was fraudulently completed in the name of the appellant. On 3 December 2004 the appellant, having come to this country, attempted to use that passport, among other documents, to support his application for a permanent National Insurance number.
The case includes a lengthy discussion of the relevant authorities and consideration of the proposition that the sentencing judge should have confined himself to matters personal to the offender rather than being influenced by the threat to the immigration system which the offence represented. The Court of Appeal had no doubt that the judge was right to say that the appellant's use of a forged passport undermined the good order of society and constituted the appellant a threat and that his continued presence would be a detriment to this country.
Click here for the full text of Benabbas.
PART F EVIDENCE
F10 Opinion Evidence
F10.3 Expert opinion evidence
In Harris [2005] EWCA Crim 1980, the court was concerned with the various scientific opinions concerning the causes of Non Accidental Head Injuries. That aspect of it is too complicated to be summarised here.
The judgment is also valuable as listing the obligations of an expert witness. The factors set out should, the court concludes, assist in bringing developments in scientific thinking before the court, even though these developments remain at the stage of an hypothesis (see [271]). The true status of the expert's evidence must be frankly indicated to the court (Clarke [1995] 2 Cr App R 425 and The Ikerian Reefer [1993] 2 Lloyds Rep 68).
It would seem that the approval accorded to Frye v United States 293 F 1013 (1923) at Blackstone's Criminal Practice, F10.5 may need to be reconsidered.
Giving the judgment in the case, Gage LJ made the following observations of general interest:
"269. Whether or not there has been a failure by the criminal justice system to control and manage expert evidence we are reluctant to give any new guidance on expert evidence arising from the facts of these cases. It may, however, be helpful to re-iterate current guidance.
270. As to expert evidence generally, the evidential rules as to admissibility are clear (see for example R v Bonython [1984] 38 SASR 45 and R v Clarke (RL) [1995] 2 Cr App R 425 (facial mapping)). We see no reason for special rules where medical experts are involved. There is no single test which can provide a threshold for admissibility in all cases. As Clarke demonstrates, developments in scientific thinking and techniques should not be kept from the court. Further, in our judgment, developments in scientific thinking should not be kept from the court, simply because they remain at the stage of a hypothesis. Obviously, it is of the first importance that the true status of the expert's evidence is frankly indicated to the court.
271. It may be helpful for judges, practitioners and experts to be reminded of the obligations of an expert witness summarised by Cresswell J in the Ikerian Reefer [1993] 2 Lloyds Rep. 68 at p 81. Cresswell J pointed out amongst other factors the following, which we summarise as follows:
- Expert evidence presented to the court should be and seen to be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
- An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of advocate.
- An expert witness should state the facts or assumptions on which his opinion is based. He should not omit to consider material facts which detract from his concluded opinions.
- An expert should make it clear when a particular question or issue falls outside his expertise.
- If an expert's opinion is not properly researched because he considers that insufficient data is available then this must be stated with an indication that the opinion is no more than a provisional one.
- If after exchange of reports, an expert witness changes his view on material matters, such change of view should be communicated to the other side without delay and when appropriate to the court.
272. Wall J, as he then was, sitting in the Family Division also gave helpful guidance for experts giving evidence involving children (see Re AB (Child Abuse: Expert Witnesses) [1995] 1 FLR 181). Wall J pointed out that there will be cases in which there is a genuine disagreement on a scientific or medical issue, or where it is necessary for a party to advance a particular hypothesis to explain a given set of facts. He added (see p. 192):
"Where that occurs, the jury will have to resolve the issue which is raised. Two points must be made. In my view, the expert who advances such a hypothesis owes a very heavy duty to explain to the court that what he is advancing is a hypothesis, that it is controversial (if it is) and placed before the court all material which contradicts the hypothesis. Secondly, he must make all his material available to the other experts in the case. It is the common experience of the courts that the better the experts the more limited their areas of disagreement, and in the forensic context of a contested case relating to children, the objective of the lawyers and the experts should always be to limit the ambit of disagreement on medical issues to the minimum."
We have substituted the word jury for judge in the above passage.
273. In our judgment the guidance given by both Cresswell J and Wall J are very relevant to criminal proceedings and should be kept well in mind by both prosecution and defence. The new Criminal Procedure Rules provide wide powers of case management to the Court. Rule 24 and paragraph 15 of the Plea and Case Management form make provision for experts to consult together and, if possible, agree points of agreement or disagreement with a summary of reasons. In cases involving allegations of child abuse the judge should be prepared to give directions in respect of expert evidence taking into account the guidance to which we have just referred. If this guidance is borne in mind and the directions made are clear and adhered to, it ought to be possible to narrow the areas of dispute before trial and limit the volume of expert evidence which the jury will have to consider."
Click here for the full text of Harris.
F12 Character Evidence: Evidence of Bad Character of Accused
F12.4 Statutory gateways
In Highton and others [2005] EWCA Crim 1985, the Court of Appeal has added further guidance as to the interpretation of the 'bad character' provisions in the Criminal Justice Act 2003. It was necessary to determine whether evidence of a defendant's bad character which is admissible under s. 101(1)(g) of that Act (i.e. in a 'tit-for-tat' response to the defendant's attack on the character of another person) can then be relied upon as evidence of the defendant's criminal propensity or whether (as was the case with the old 'tit-for-tat' rule under the Criminal Evidence Act 1898, s. 1(f)(ii)) it must be considered relevant only to the defendant's credibility as a witness.
There was always an element of artificiality under the old tit-for-tat rule. If courts or juries could be trusted to accept in such cases that the defendant's bad character or criminal record was relevant only to his credibility as a witness, there could be no real objection to juries being told, routinely, about the criminal record of any defendant who chose to testify. It is precisely because courts and juries cannot be trusted to do any such thing that such evidence was otherwise kept from them under the old law. Nor was this always an indictment of the jury's powers of logical reasoning. On the contrary, the most intelligent of jurors could be expected to struggle when directed (for example) that the defendant's previous convictions for burglary should be considered relevant only to his credibility as a witness and not (perish the thought!) to any possible propensity to commit burglaries. The more intelligent the jurors the more absurd and irrational such a direction must have appeared.
In a number of places the Criminal Justice Act 2003 has expressly abrogated artificial rules under which certain items of evidence were formerly considered admissible only for limited purposes of this kind. The previous consistent or inconsistent statement of a witness, for example, need no longer be considered relevant only for the purpose of supporting or undermining the credibility of the witness concerned. Once admissible, such a statement may now be relied upon (if believed) as evidence of what really happened (s. 120(4) and (5)). But is that also true of character evidence admitted under s. 101(1)(g)?
In Highton the Court of Appeal ruled that it was. Giving the judgment of the court, Lord Woolf CJ noted that the obvious 'gateway' for evidence of criminal propensity is s. 101(1)(d), which must be read in conjunction with s. 103. An argument could thus be constructed to the effect that propensity evidence should be admitted (if at all) only via the s. 101(d) gateway; but the court rejected that argument. Lord Woolf said (at [9]-[10]):
"In our view, . . . the force of this argument is diminished for a number of reasons. First, s.103(1) prefaces s.103(1)(a) and (b) with the word "include". This indicates that the matters in issue may extend beyond the two areas mentioned in this sub-section. More importantly, while this argument can be advanced in relation to s.101(d), it can also be advanced in respect of the other parts of subsection (1), in particular in relation to s.101(1)(a) and (b). In addition, s.101(1) itself states that it is dealing with the question of admissibility and makes no reference to the effect that admissible evidence as to bad character is to have. We also consider that the width of the definition in s. 98 of what is evidence as to bad character suggests that, wherever such evidence is admitted, it can be admitted for any purpose for which it is relevant in the case in which it is being admitted.We therefore conclude that a distinction must be drawn between the admissibility of evidence of bad character, which depends upon it getting through one of the gateways, and the use to which it may be put once it is admitted. The use to which it may be put depends upon the matters to which it is relevant rather than upon the gateway through which it was admitted. It is true that the reasoning that leads to the admission of evidence under gateway (d) may also determine the matters to which the evidence is relevant or primarily relevant once admitted. That is not true, however, of all the gateways. In the case of gateway (g), for example, admissibility depends on the defendant having made an attack on another person's character, but once the evidence is admitted, it may, depending on the particular facts, be relevant not only to credibility but also to propensity to commit offences of the kind with which the defendant is charged."
A further matter considered (if only obiter) in Highton was the relationship between the power of the court under s. 101(3) to exclude otherwise admissible bad character evidence in order to prevent injustice and the long established power of a court under the Police and Criminal Evidence Act 1984, s. 78 to exclude evidence on which the prosecution proposes to rely where it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The former provision protects only against unfairness arising out of the admission of bad character evidence under s.101(1)(d) or (g), but the scope of the Police and Criminal Evidence Act 1984, s. 78 is limited only by its inapplicability to defence evidence (even where such evidence is damaging to a co-defendant). Lord Woolf said (at [13]-[14]):
"The application of s.78 does not call directly for decision in this case. We, therefore, do not propose to express any concluded view as to the relevance of s.78. However, it is right that we should say that, without having heard full argument, our inclination is to say that s.78 provides an additional protection to a defendant. In light of this preliminary view as to the effect of s.78 of PACE, judges may consider that it is a sensible precaution, when making rulings as to the use of evidence of bad character, to apply the provisions of s.78 and exclude evidence where it would be appropriate to do so under section s.78, pending a definitive ruling to the contrary. Adopting this course will avoid any risk of injustice to the defendant.
In addition, as s.78 serves a very similar purpose to Article 6 of the European Convention on Human Rights, following the course we have recommended should avoid any risk of the court failing to comply with Article 6. To apply s.78 should also be consistent with the result to which the court would come if it complied with its obligation under s.3 of the Human Rights Act 1998 to construe sections 101 and 103 of the 2003 Act in accordance with the Convention."
F13 Character Evidence: Admissibility of Good Character
F13.3 The need for jury direction
The Privy Council stressed the need to give a good character direction which deals with the issues of both credibility and propensity in Singh v The State [2005] UKPC 35. Good character goes primarily to credibility, especially in a case in which the question of credibility goes to the very heart of the matter which the jury must decide. Here, the issue was one of credibility as between the defendant, a lawyer of hitherto unblemished good character, and a prosecution witness of whom the same could not be said. Lord Bingham of Cornhill commented "It may be that the jury would incline to regard a practising lawyer as a man of probity whose word was prima facie worthy of belief. But the belief of lawyers in their own probity is not universally shared, and there are those who believe them to be capable of almost any chicanery or sharp practice."
A failure to give a credibility direction will not necessarily render a conviction unsafe in every case. The matter needs to be reviewed in the light of all the facts of the case, but here, where the issue was one of credibility, it could not be said that the jury would inevitably have convicted had a proper direction been given: Aziz [1996] AC 41 followed.
Click here for the full text of Singh v The State.
F15 The Rule against Hearsay
F15.1 Criminal Justice Act 2003: Application
The provisions in the Criminal Justice Act 2003, part 11, chapter 2 (hearsay evidence) apply to all cases where the trial takes place after the commencement date (4 April 2005), even if there has been a preparatory hearing prior to that date (H [2005] EWCA Crim 2083).
F16 Exceptions to the Rule against Hearsay
F16.1 Criminal Justice Act 2003: Application
The provisions in the Criminal Justice Act 2003, part 11, chapter 2 (hearsay evidence) apply to all cases where the trial takes place after the commencement date (4 April 2005), even if there has been a preparatory hearing prior to that date (H [2005] EWCA Crim 2083).
F16.11 Criminal Justice Act 2003: Business and Other Documents
In Humphris [2005] EWCA Crim 2030, the prosecution had sought to rely on the Criminal Justice Act 2003, s. 117 so as to provide evidence of the previous behaviour of the accused in relation to his previous convictions. It was alleged that he had been guilty of a series of assaults on women on the same night and that "the methods used" had been similar in the case of his previous convictions. It was held that, whilst the evidence of the fact of the accused's previous convictions had been admissible pursuant to s 117 Act as an alternative to the provisions of the PACE 1984, s. 73 or s. 74, the evidence of 'methods used' had been inadmissible. It has been suggested that this endorsement of the use of s. 117 will lead to the large-scale abandonment of the use of the PACE sections in proving convictions as s. 117 has a number of practial advantages.
Section 117 of the 2003 Act provides for the admission of business or other documents but the 'relevant person' for the purposes of the section would have been the complainant in relation to each previous conviction not a police officer.
The Court of Appeal gave guidance for future practice and emphasised the importance of the prosecution determining whether they need more than the fact of a previous conviction to achieve the purpose for which it is admitted. Where the prosecution do want more than evidence of the fact of a previous conviction, they must have the evidence to support the allegations (normally a statement of the complainant relating to the previous conviction in a sexual case who is available to give first-hand evidence of what had happened). Care had to be exercised to establish that it really was necessary to go to such lengths, especially having regard to the effect of such involvement of the past victims.
NEW STATUTORY INSTRUMENTS
Licensing Act 2003 (Commencement No. 6) Order 2005 (SI 2005 No. 2090)
This Order brings into force, on 7 August 2005, ss. 34 to 40, 42 to 46 (except s. 43(4)) and ss. 84 to 86 and sch. 5, paras. 1, 4, 5, 6, 9, 10(b) and 12 (insofar as those paragraphs relate to the implemented sections). The implemented provisions relate to the variation and transfer of premises licences, the variation of club premises certificates and to appeals in respect of such matters. The various sections of this Act which are mentioned in the main work are not affected by this Order.
This Order provides, for the avoidance of doubt, that para. 23(1) of sch. 2 to the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2005 ( 'transitional arrangements for recall after release') is to be read so that the reference to a prisoner who falls to be released under the Criminal Justice Act 1991 includes a prisoner who was released before 4 April 2005 and the words "after 4 April 2005" are to be read only as indicating the date from which para. 23(1)(a) and (b) take effect. The effect of para. 23(1) is that a prisoner released on licence under the Criminal Justice Act 1991 can have his licence revoked and be recalled to prison by the Secretary of State under the Criminal Justice Act 2003, s. 254.
The Drugs Act 2005 (Commencement No. 2) Order 2005 (SI 2005 No. 2223)
This Order brings into force, on 1 September 2005, the following provisions of the Act:
- in sch. 1 (amendments), paras. 6 and 7; and
- in sch. 2 (repeals), the entry relating to the CJPA 2001, s. 38.
Section 38 of the CJPA 2001 (which is repealed by the Drugs Act 2005, sch. 1, para. 6 and sch. 2) amended s. 8 of the Misuse of Drugs Act 1971 so as to create an offence of permitting the use of a controlled drug on premises but was in fact never brought into force. However, the amendment made by sch. 1, para. 7 of the 2005 Act is material in that it amends the Anti-social Behaviour Act 2003, s. 1; it inserts a new s. 1(7A): 'For the purposes of subsection (6)(a) a constable may enter any premises to which this section applies, using reasonable force if necessary.'
The only other provision of the Act in force, other than the formal sections, is s. 21 (inclusion of mushrooms containing psilocin etc. as Class A drugs), which was brought into force on 18 July 2005 by SI 2005 No. 1650.
This Order amends the list of offences that are treated as relevant offences for the purposes of an application for a personal licence under part 6 of the Licensing Act 2003 with effect from 23 September 2005. Following the repeal of the PCC(S)A 2000, s. 161(2) and (3), this Order amends para. 18 of sch. 4 to the 2003 Act which defines a sexual offence, by substituting for the reference to the definition of a "sexual offence" in s. 161(2) of the 2000 Act, a reference to part 2 of sch. 15 to the CJA 2003, although the offence under the SOA 1967, s. 4 (procuring others to commit homosexual acts) is omitted and the offences under the SOA 1956, ss. 8 and 18 (intercourse with a defective and fraudulent abduction of an heiress) are added. It also defines violent offence, substituting for the reference to the definition of a "violent offence" in s. 161(3) of the 2000 Act a definition which replicates it.
The Collection of Fines (Pilot Schemes) (Amendment No. 3) Order 2005 (SI 2005 No. 2410)
This Order amends the Collection of Fines (Pilot Schemes) (Amendment) Order 2004 (SI 2004 No. 175), with effect from 26 September 2005, so as extend the operation of the pilot schemes to additional local justice areas.
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