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Blackstone's Criminal Practice 2007

Updates

April 2007

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Blackstone's Criminal Practice 2007

April 2007

April Update 2006

Updates to Blackstone's Criminal Practice 2007 are produced by Michael Hirst, Professor of Criminal Justice, De Montfort University, Leicester, and Laurence Eastham, Editorial Co-ordinator, Blackstone's Criminal Practice.

The April update primarily covers developments occurring or reported in March 2006.

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 Legislation

PART A GENERAL PRINCIPLES OF CRIMINAL LAW

A5 Parties to Offences

A5.5 Scope of the Joint Venture

As reported in last month's update, the authorities on joint enterprise were recently reviewed by the Court of Appeal in Rahman [2007] EWCA Crim 342. The court has now (at [2007] EWCA Crim 885) certified the following question for possible consideration by the House of Lords:

If, in the course of a joint enterprise to inflict unlawful violence, the principal party kills with an intention to kill which is unknown to and unforeseen by a secondary party, is the principal's intention relevant: (a) to whether the killing was within the scope of a common purpose to which the secondary party was an accessory; and (b) to whether the principal's act was fundamentally different from the act or acts which the secondary party had foreseen as part of the joint enterprise?

A6 Inchoate Offences

A6.25 Conspiracy to Defraud

A dishonest price-fixing or 'cartel' agreement may also amount to a conspiracy to defraud at common law (see Norris v Govt of the USA [2007] EWHC 71 (Admin), although such agreements may now be prosecuted instead as offences under the Enterprise Act 2003, s. 188.

PART B OFFENCES

B3 Sexual Offences

B3.8 Rape - Absence of Consent

The Sexual Offences Act 2003, s. 74, was examined by the Court of Appeal in Bree [2007] EWCA Crim 256, where the principal question concerned the effect of self-induced intoxication on a complainant's capacity to give effective consent to sexual intercourse. The story in this case is a familiar one: young man and young woman each have too much to drink, sexual intercourse takes place, and young woman later makes a complaint of rape which young man denies, claiming that she consented and enjoyed it. Dougal (November 2005, unreported) in which D was controversially acquitted, involved most of those same features.

The first problem that arises in such cases is usually one not of definition but of evidence. If both the defendant and the complainant tell stories that are credible, and neither is badly damaged in cross-examination then, in the absence of corroboration of some kind, the jury will not ordinarily know who to believe. Nor is the prosecution case helped if the complainant's recollection of the events has been blurred by her own intoxication. In such cases, acquittal (as in Dougal) is usually the only proper verdict. This is no fault of the law. As Judge P observed in Bree (at [36]) the principal difficulties faced by a jury are not legal:

They lie with infinite circumstances of human behaviour, usually taking place in private without independent evidence, and the consequent difficulties of proving this very serious offence.

In Bree however the definition of consent was also in issue. The Sexual Offences Act 2003, s. 74, was supposed to provide a clearer and more coherent definition of consent than the old judicial attempts at definition, of which Olugboja (1981) 73 Cr App R 344 was the leading authority. According to s. 74 '...a person consents if he agrees by choice, and has the freedom and capacity to make that choice', but neither 'freedom', nor 'capacity', are further defined or explained within the Act, and these are themselves complex concepts, so we are not that much further forward.

When considering the ability of an intoxicated complainant to give valid consent, the court in Bree derived assistance from Lang (1976) 62 Cr App R 50, in which it was said that:

. . . there is no special rule applicable to drink and rape. If the issue be, as here, "did the woman consent?" the critical question is not how she came to take the drink, but whether she understood her situation and was capable of making up her mind.

See also Malone [1998] 2 Cr App R 447. In Bree, Judge P concluded that, just as a drunken intent remains an intent, so a drunken consent remains a consent:

In our judgment, the proper construction of section 74 of the 2003 Act, as applied to the problem now under discussion, leads to clear conclusions. If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant's state of mind, if intercourse takes place, this would be rape. However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape. We should perhaps underline that, as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, is fact specific, or more accurately, depends on the actual state of mind of the individuals involved on the particular occasion.

B4 Theft, Handling and Related Offences

B4.52 Robbery

Where the prosecution allege that D committed a robbery involving a threat of force, it does not matter whether the victim is actually put in fear or not: it is D's intention that matters (B and R v DPP [2007] EWHC 739 (Admin). The fact that V was not afraid does not mean that D did not seek to put him in fear.

B4.118 Fraudulent Use of Telecommunications System

The Violent Crime Reduction Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 858) brings into force, on 6 April 2007, s. 62 of the Act, which amends the Mobile Telephones (Re-programming) Act 2002 so as to make offering or agreeing to re-programme an offence.

B9 Offences Affecting Security

B9.60 Damaging Disclosure of Defence Information: Specific Defences

It is argued in Blackstone's Criminal Practice 2007 that the reverse burden of proof purportedly imposed by the Official Secrets Act 1989, s. 2(3), might be open to challenge as incompatible with the ECHR, Article 6. This view has been vindicated by the decision of the Court of Appeal in Keogh [2007] EWCA Crim 528, in which it was held that the Act could operate effectively without the imposition of such reverse burdens, which accordingly were disproportionate and unjustifiable. Because those subsections, if given their natural meaning, are incompatible with Article 6, they should be 'read down' by applying a similar interpretation to that achieved by the Terrorism Act 2000, s. 118. See also B9.66 and F3.6.

B9.66 Damaging Disclosure of International Relations Information: Specific Defences

It is argued in Blackstone's Criminal Practice 2007 that the reverse burden of proof purportedly imposed by the Official Secrets Act 1989, s. 3(4), might be open to challenge as incompatible with the ECHR, Article 6. This view has been vindicated by the decision of the Court of Appeal in Keogh [2007] EWCA Crim 528, in which it was held that the Act could operate effectively without the imposition of such reverse burdens, which accordingly were disproportionate and unjustifiable. Because those subsections, if given their natural meaning, are incompatible with Article 6, they should be 'read down' by applying a similar interpretation to that achieved by the Terrorism Act 2000, s. 118. See also B9.60 and F3.6.

B10 Terrorism, Piracy and Hijacking

B10.2 Definition of Terrorism

Following its ruling in F [2007] EWCA Crim 243 (as to which see last month's update) the Court of Appeal has certified the following questions for possible consideration by the House of Lords (see F [2007] All ER (D) 27 (Mar)):

(1) In s. 1(4)(d) of the Terrorism Act 2000, are the words "government of a country other than the United Kingdom" restricted to representative or democratic governments?

(2) For the purposes of s. 58(3) of the Terrorism Act 2000, can it amount to a "reasonable excuse" for possession of a document containing information likely to be useful to a person committing or preparing an act of terrorism that the intended target is a tyrannical or dictatorial regime?

B10.96 Possession of an Article for Terrorist Purposes

B10.101 Collection of Information

Just a few weeks after its ruling in M [2007] EWCA Crim 218, , the Court of Appeal in Rowe [2007] EWCA Crim 635 has radically reconsidered the relationship between the offence created by the Terrorism Act 2000, s. 57 (possession of an article for a purpose connected with the commission, preparation or instigation of an act of terrorism) and that created by s. 58 (collection recording or possession of document etc containing information likely to be useful to a terrorist). In M the court held that although documents containing information (including information stored on discs or USB storage devices etc) are 'articles', s. 58 (which unlike s. 57 does not refer to the instigation of terrorism) is not redundant because Parliament cannot have intended that s. 57 should apply to such documents.

In Rowe a five-judge court presided over by Lord Phillips CJ held that M was decided per incuriam because the reasoning adopted in that case did not reflect the written submissions prepared by the appellants for the appeal and had not been addressed by the Crown's written submissions. It was not even clear that it reflected oral argument advanced by the appellants. Furthermore the judgment was effectively extempore, being delivered the day after the hearing, so that the court had little time for reflection or research. The court in Rowe did not believe that M could have been decided in that way had the Crown been forewarned and able properly to deal with the issues.

There was in fact no basis for the conclusion that Parliament had intended to create a completely separate regime for documents and records from that which applied to other articles. As Lord Phillips CJ explained at [34] to [36]:

There is undoubtedly an overlap between sections 57 and 58, but it is not correct to suggest that if documents and records constitute articles for the purpose of section 57, 58 is almost superfluous. Collecting information, which falls within section 58 alone, may well not involve making a record of the information. Equally a person who possesses information likely to be useful to a person committing or preparing an act of terrorism may well not be in possession of it for a purpose connected with the commission, preparation or instigation of an act of terrorism.

Sections 57 and 58 are indeed dealing with different aspects of activities relating to terrorism. Section 57 is dealing with possessing articles for the purpose of terrorist acts. Section 58 is dealing with collecting or holding information that is of a kind likely to be useful to those involved in acts of terrorism. Section 57 includes a specific intention, section 58 does not.

These differences between the two sections are rational features of a statute whose aims include the prohibition of different types of support for and involvement, both direct and indirect, in terrorism . . .

The court in M had previously identified a point of law of general public importance for possible consideration by the House of Lords, namely, 'Is the possession of literature or other information in electronic and /or printed form caught by section 57 of The Terrorism Act 2000?'. The Court of Appeal in Rowe clearly felt that the error (if error it was) in M was too serious to remain uncorrected pending consideration of that question. It remains to be seen whether the Appellate Committee will indeed give leave for such an appeal.

B10.172 Offences in relation to the Security of Pathogens and Toxins

The Part 7 of the Anti-terrorism, Crime and Security Act 2001 (Extension to Animal Pathogens) Order 2007 (SI 2007 No. 926) extends the effect of ss. 58 to 74 of the Act (duties on occupiers) to certain pathogens specified in a newly modified sch. 5 to the Act (set out as a schedule to the Order).

The Schedule 5 to the Anti-terrorism, Crime and Security Act 2001 (Modification) Order 2007 (SI 2007 No. 929) modifies sch. 5 inter alia by adding the viruses listed in art. 3, the rickettsiae listed in art. 4(b), the bacteria listed in art. 5, the fungi listed in art. 6 and the toxins listed in art. 7(2).

B11 Offences Affecting Public Order

B11.139 Ticket Touts

The Violent Crime Reduction Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 858) brings into force, on 6 April 2007, s. 53 of the Act which amends the Criminal Justice and Public Order Act 1994, s. 166. The amendment's main effect is to widen the offence so that it may be committed by disposal of a ticket rather than merely by selling it or offering it for sale.

B11.224 Children and Alcohol

The Violent Crime Reduction Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 858) brings into force, on 6 April 2007, ss. 23 and 24 of the Act which relate to the new offence of persistently selling alcohol to children.

B12 Offences relating to Weapons

B12.38 Possessing or Distributing Prohibited Weapons or Ammunition

The Violent Crime Reduction Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 858) brings into force, on 6 April 2007, ss. 28 and 29 of the Act (using someone to mind a weapon).

B12.83 Offensive Weapons

The Violent Crime Reduction Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 858) brings into force, on 6 April 2007, ss. 28 and 29 of the Act (using someone to mind a weapon).

B12.97 Having Article with Blade or Point on School Premises

The Violent Crime Reduction Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 858) brings into force, on 31 May 2007, ss. 45, 46 and 48 of the Act. Sections 45 and 46 give relevant members of staff a power to search school pupils and further education students for weapons. Section 48 amends the Criminal Justice Act 1988, s. 139B(1) so as to substitute 'suspecting' for 'believing'.

B15 Corruption

B15.18 Sentencing Guidelines

In A-G's Ref (No. 1 of 2007); Hardy [2007] EWCA Crim 760, the Court of Appeal has emphasised that where police officers and other officials with access to databases containing information regarding members of the public abuse their position and do so for profit, then not only must a deterrent prison sentence follow but it must be a severe one. Accessing information on a police computer involves deliberation and it must be made clear to such officers that, if they commit such offences, they face severe punishment, even in the face of substantial personal mitigation.

B22 Offences Relating to the Proceeds of Criminal Conduct

B22.3 Money Laundering and Criminal Property

Gabriel [2006] EWCA Crim 229, and Loizou [2005] 2 Cr App R 618 must now be construed in light of the Court of Appeal's ruling in K (appeal under s. 58 of the Criminal Justice Act 2003) [2007] EWCA Crim 491. It was held in that case that if D fraudulently under-declares his profits with the result that he deprives the public revenue of tax, he thereby obtains, in respect of the relevant period, a pecuniary advantage which is derived from cheating the public revenue and this may be a 'benefit' within the meaning of the Proceeds of Crime Act 2002, s. 340(3)(a), although this benefit can become criminal property only once a false declaration has been made.

PART C ROAD TRAFFIC OFFENCES

C2 Evidence and Procedure in Road Traffic Cases

C2.6 Proof of Identity of Driver in Summary Proceedings

The Criminal Procedure (Amendment) Rules 2007 (SI 2007 No. 699), which came into force on 2 April 2007, include changes to the Criminal Procedure Rules 2005 which affect service. A new Part 4 (service of documents) is added in substitution for the existing Part 4. This consolidates, revises and simplifies the rules about the service of documents in criminal cases including the service of summonses.

C3 Offences Relating to Driving Triable on Indictment

C3.9 Dangerous Driving and Causing Death by Dangerous Driving

The speeding policeman affair rumbles on, and we are still without a final ruling. In the widely publicised case of DPP v Milton [2006] EWHC 242 (Admin) the Divisional Court (in a judgment given by Hallett LJ) allowed a prosecution appeal against a district judge's ruling that D, a class 1 police driver, was not guilty of dangerous driving when he 'familiarised himself' with a powerful new unmarked police car in the early hours of the morning at speeds of up to 149 mph on the M54 and at an average speed of over 60 mph on restricted urban roads with a 30 mph limit.

The court did not go so far as to remit the case with a direction to convict, but merely required it to be reheard on the basis that the district judge had misdirected himself on certain matters and had taken some irrelevant matters (including expert evidence as to police driver skill and training etc) into account. Hallett LJ said:

It matters not whether [D] intended to drive dangerously, or believed that he could drive at grossly excessive speeds without causing danger to others because of his advanced driving skills. I repeat that the test is, what is the standard judged objectively and what would have been obvious to the independent bystander? As to whether the district judge would have been entitled to impute knowledge of the respondent's driving skills to the independent bystander on the basis of the arguments advanced before us, I can form no concluded view.

My comment at the time (in the March 2006 update) was that the court ought to have expressed a concluded view on that last question. I argued that D's skill and experience was a highly relevant consideration which any reasonable bystander must surely be required to take into account; but, in the absence of guidance from the Divisional Court, a different district judge held on rehearing the case that the test for dangerous driving was in absolute terms and that he was obliged to approach the evidence from the perspective of the mythical competent and careful driver, unburdened by any knowledge of the particular ability or lack of ability of the defendant. Accordingly he found D guilty of dangerous driving.

In Milton v DPP [2007] EWHC 532 (Admin), a differently constituted Divisional Court disagreed. Smith LJ said (at [27]:

The fact that the driver is a Grade 1 advanced police driver is a circumstance to which regard must be had, pursuant to [the RTA 1988] s. 2A(3). The weight to be attached to such a circumstance is entirely a matter for the fact finder. In the instant case, the fact finder might conclude that the driving was thoroughly dangerous regardless of the skill of the individual driver. On the other hand, he might conclude that, whereas for a driver of ordinary skill, such driving would have been dangerous, for a man of exceptional skill it was not. Such a thought process does not offend against the requirement that the test for dangerous driving is objective. It simply refines the objective test by reference to existing circumstances.

Had the court dealt with this question at the first time of asking the case would by now have been resolved. As it is, it has been remitted to the second district judge to reconsider in light of the later ruling.

Smith LJ doubted that the ruling would have much relevance to a typical dangerous driving case. At [28] he explained:

It seems to me that there will not be [many] cases in which the driver's personal skill or lack of it will be capable of making a difference to the objective assessment of the dangerousness of the driving in question. It will, in my view, only be the extremes of 'special skill' and 'almost complete lack of experience' that will be such as could affect the mind of the decision maker. The mere fact that a driver has driven for 30 years without an accident will not be relevant; nor will evidence that a driver does not drive frequently. If, where the circumstance is such as could properly affect the mind of the decision maker, for better or worse, then so be it. Section 2A(3) appears to me to require that regard should be had to such circumstances.

With respect, there must be many circumstances in which it would be absurd to disregard all evidence concerning the skill, experience or inexperience of the driver. In few cases will such evidence be decisive and in some cases it may be of no relevance at all. Overtaking on a blind bend or summit must almost inevitably be considered dangerous, however skilled the driver. Indeed, an experienced driver ought to know better. But not all cases are as clear as that. Where, for example, it is merely alleged that D was driving too fast for the prevailing conditions on a winding road, his skill and experience (or the lack of it) must surely be taken into account when assessing the dangers involved.

PART D PROCEDURE

D1 Police Powers

D1.2 Power to Stop and Search

The Police and Justice Act 2006 (Commencement No. 2, Transitional and Saving Provisions) Order 2007 (SI 2007 No. 709) brings into force, on 1 April 2007, s. 12 of the Act. Section 12 amends the Aviation Security Act 1982 to provide a power of stop and search for a constable at an aerodrome.

D1.75 Testing for Presence of Class A Drugs

The Drugs Act 2005 (Commencement No. 5) Order 2007 (SI 2007 No. 562) brings the following provisions of the Act fully into force on 1 April 2007:

s. 4 (drug offence searches: Northern Ireland);
s. 6 (X-rays and ultrasound scans: Northern Ireland);
s. 10 (follow-up assessment);
s. 11 (requirements under sections 9 and 10: supplemental);
s. 13 (arrangements for follow-up assessment); and
s. 14 (attendance at follow-up assessment);
s. 11 (requirements under sections 9 and 10: supplemental);
s. 15 (disclosure of information about assessments);
s. 16 (samples submitted for further analysis); and
s. 17 (relationship with Bail Act 1976 etc).

D1.77 Warrant Issued by a Justice of the Peace

The Violent Crime Reduction Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 858) brings into force, on 31 May 2007, ss. 58 of the Act. Section 58 inserts a new s. 96B into the Sexual Offences Act 2003 which provides a power of entry and search of the home of a person who is subject to notification requirements under part 2 of the 2003 Act (i.e. a registered sexual offender).

D2 Courts, Judges and Parties

D2.68 Abuse of Process: Delay

D2.76 Losing or Destroying Evidence

As to the power of a court to stay proceedings in circumstances where delay and lost evidence may make a fair trial impossible (and the need for clear and careful directions where the judge concludes that a fair trial remains possible), see Ali [2007] EWCA Crim 691.

D3 Criminal Procedure Rules

D3.6 Case Management

The guidance given by the Court of Appeal in Jisl [2004] EWCA Crim 696 has been reiterated in L [2007] EWCA Crim 764.

D5 Preliminary Proceedings in Magistrates' Courts

D5.8 Service etc. of the Summons

D6 Bail

D6.2 Persons and Courts Having Jurisdiction to Grant Bail

The Police and Justice Act 2006 (Commencement No. 2, Transitional and Saving Provisions) Order 2007 (SI 2007 No. 709) brings into force, on 1 April 2007, s. 10 of and sch. 6 to the Act. These provisions amend the Police and Criminal Evidence Act 1984 in relation to bail granted by a constable elsewhere than at a police station and bail granted at a police station.

D10 The Indictment

D10.1 General

The Criminal Procedure (Amendment) Rules 2007 (SI 2007 No. 699), which came into force on 2 April 2007, include changes to the Criminal Procedure Rules 2005 which affect indictments. They also revoke the Indictment Rules 1971. A new Part 14 (the indictment) is added in substitution for the existing Part 14. This revises and simplifies the rules about the service, form and content of indictments.

D19 Summary Trial: General and Preliminary Matters

D19.18 Failure of Defendant to Appear

D20 Summary Trial: The Course of the Trial

D20.4 Securing the Attendance of Witnesses

D24 Appeal to the Court of Appeal

D24.67 Powers of the Court of Appeal when Determining an Appeal against Sentence

In Reynolds [2007] EWCA Crim 538, it was held that by virtue of the Criminal Appeal Act 1968, s. 11(3), the Court of Appeal cannot, when determining an appeal against sentence, impose a more severe sentence than the one originally imposed, even where the original sentence was less severe than that required by mandatory provisions of the Criminal Justice Act 2003. As Lord Scarman explained in Cain [1985] 1 AC 46, a sentence of a Crown Court cannot be a nullity. The lack of requisite severity does not make the sentence unlawful. An extended sentence, for example, passed when the judge ought to have imposed an indeterminate sentence, is not 'beyond' the powers of the court merely because it does not go far enough, and it remains a valid and effective sentence.

Latham LJ concluded (at [24]):

. . . where the judge has properly concluded that the criteria of dangerousness have been met, this court should respect that finding so far as it can. As it is, in our view, unable to substitute the mandatory sentence where the Crown Court has failed to impose it, this court in the exercise of its discretion, should not interfere with the sentence in fact imposed, even though that results in a sentence which is not in accordance with [the terms of the Act].

D29 Public Funding and Costs

D29.6 Applying for a Representation Order

The Criminal Defence Service (General) (No. 2) (Amendment) Regulations 2007 (SI 2007 No. 780) increase the financial limits under the principal order inter alia by substituting £201 for £194 in reg. 5(3) and £95 for £92 in reg. 5(5).

PART E SENTENCING

E2 Custodial Sentences: General Provisions

E2.8 Concurrent and Consecutive Custodial Sentences

As to the imposition of consecutive sentences in cases where one of those sentences is an extended one, see C [2007] EWCA Crim 680 and E5.9 below.

E5 Custodial Sentences for Dangerous Offenders

E5.9 Assessment of Dangerousness: Consecutive Sentences

There is it seems no end to the difficulties inflicted on the courts by the complexities of the Criminal Justice Act 2003 in respect of dangerous offenders. Lang [2005] EWCA Crim 2684 and O'Brien [2006] EWCA Crim 1741, which were only recently examined in this context in O'Halloran [2006] EWCA Crim 3148 and in Brown [2006] EWCA Crim 1996, have been reconsidered yet again in C [2007] EWCA Crim 680. In C consideration was also given to the preceding regime as introduced by the Crime and Disorder Act 1998, s. 58 and restated in the Powers of Criminal Courts (Sentencing) Act 2000, s. 86.

The judgment in C cannot easily be summarised, but the court did offer (at [19]) this general guidance as to the practice to be adopted in dealing with consecutive and concurrent sentences on dangerous offenders:

There is nothing unlawful about the imposition of a concurrent or consecutive sentence within either regimes relating to extended sentences, and indeed, as explained by Hooper LJ in O'Brien, where sentences of life imprisonment or imprisonment for public protection are imposed under chapter 5. This court will not interfere where extended or indeterminate sentences were justified, unless the practical result is manifestly excessive, or for some reason gives rise to real problems of administration.
Nonetheless, judges should try to avoid consecutive sentences if that is at all possible and adjust the custodial term or minimum period within concurrent sentences to reflect the overall criminality if that is possible within other sentencing constraints.
If consecutive sentences are considered appropriate . . . or necessary, if one or more of those sentences are determinate sentences, the determinate sentences should be imposed first, and the extended sentence or sentences expressed to be consecutive.
In shaping the overall sentence, judges should remember that there is no obligation for the sentences to be expressed in historical date order. There is nothing wrong with stating that the sentence for the first offence in point of time should be served consecutively to a sentence or sentences imposed for any later offence or offences.

E6 Prescribed Custodial Sentences

E6.3 Minimum Custodial Sentences for Firearms Offences

The Violent Crime Reduction Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 858) brings into force, on 6 April 2007, s. 30 of the Act which amends the Firearms Act 1968, s. 51A so as to substantially expand the range of firearms offences to which it applies.

E16 Orders Against Parents

E16.6 Fine Compensation or Costs to be Paid by Parent

The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 8) Order 2007 (SI 2007 No. 602) brings into force, on 1 April 2007, s. 14 of the Act (surcharge payable on conviction under the Criminal Justice Act 2003, s. 161A) and inter alia the consequential amendment to the Powers of Criminal Courts (Sentencing) Act 2000, s. 137. The amendment inserts a new s. 137(1A) which provides that any surcharge ordered in respect of a child or young person be paid by the parent or guardian unless he cannot be found or it is unreasonable to require him to pay.

E17 Fines

E17.9 Fines: Sentencing Principles

The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 8) Order 2007 (SI 2007 No. 602) brings into force, on 1 April 2007, s. 14 of the Act (surcharge payable on conviction under the Criminal Justice Act 2003, s. 161A). The effect of s. 161A, taken together with the Criminal Justice Act 2003 (Surcharge) (No. 2) Order 2007 (SI 2007 No. 1079), is to require a court imposing a fine to apply a £15 surcharge which is also payable by the offender.

E18 Compensation Orders

E18.9 Surcharge

The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 8) Order 2007 (SI 2007 No. 602) brings into force, on 1 April 2007, s. 14 of the Act (surcharge payable on conviction under the Criminal Justice Act 2003, s. 161A). The effect of s. 161A, taken together with the Criminal Justice Act 2003 (Surcharge) (No. 2) Order 2007 (SI 2007 No. 1079), is to require any court imposing a fine to apply a £15 surcharge which is also payable by the offender.

E23 Exclusions and Disqualifications

E23.2 Football Banning Orders

The Violent Crime Reduction Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 858) brings into force, on 6 April 2007, s. 52 of and sch. 3 to the Act which inter alia amend the Football Spectators Act 1989. The amendments affect bail, appeals, the duration of banning orders and procedural isues.

PART F EVIDENCE

F1 General Principles of Evidence

F1.9 Relevance

Hui Chi-ming v The Queen [1992] 1 AC 34 and Cooke (1986) 84 Cr App R 286 were considered by the Court of Appeal in Deboussi [2007] EWCA Crim 684, in which it was held that a jury should in some cases be told of a previous acquittal in a case involving the same facts or witnesses, but only where there was a clear inference from the verdict that the jury in the previous trial had rejected a witness's testimony on the basis that they did not believe him, and where that witness's evidence was directly in issue in the instant trial.

With respect, the fact that a witness's accusations against another person failed to result in conviction cannot demonstrate any such thing. When a jury brings in a not guilty verdict they may be 90% sure that the witness was telling the truth, but acquit on the 10% possibility that he was not.

It may be that the witness was discredited in cross-examination, at the earlier trial, perhaps because he was confronted with irrefutable evidence of his lies, or he may appear to be a serial accuser, but that in each case is another matter. See Hirst, 'Contradicting Previous Acquittals' [1991] Crim LR 510.

This does not mean it is wrong to let a jury know of the previous case, as long as they are told that the acquittal proves nothing in itself.

F3 Burden and Standard of Proof and Presumptions

F3.6 Incidence of the Legal Burden: the Human Rights Act 1998

Lambert [2001] 3 All ER 577; Johnstone [2003] 3 All ER 884 and Sheldrake v DPP [2005] 1 AC 264 were considered and applied by the Court of Appeal in Keogh [2007] EWCA Crim 528, in which it was held that the offences created by the Official Secrets Act 1989, s. 3(4)), could operate effectively without the imposition of the reverse burdens purportedly imposed on defendants by ss 2(3) and 3(4) of the Act, which accordingly were disproportionate and unjustifiable. Because those provisions, if given their natural meaning, were incompatible with Article 6 of the Convention, they were 'read down' by applying a similar interpretation to that achieved by the Terrorism Act 2000, s. 118.

NEW LEGISLATION

Drugs Act 2005 (Commencement No. 5) Order 2007 (SI 2007 No. 562)

This Order brings the following provisions of the Act fully into force on 1 April 2007:

s. 4 (drug offence searches: Northern Ireland);
s. 6 (X-rays and ultrasound scans: Northern Ireland);
s. 10 (follow-up assessment);
s. 13 (arrangements for follow-up assessment); and
s. 14 (attendance at follow-up assessment);
s. 11 (requirements under sections 9 and 10: supplemental);
s. 15 (disclosure of information about assessments);
s. 16 (samples submitted for further analysis); and
s. 17 (relationship with Bail Act 1976 etc).

Domestic Violence, Crime and Victims Act 2004 (SI 2004 No. 602)

This Order brings into force, on 1 April 2007, s. 14 of the Act (surcharge payable on conviction) and sch 10, paras. 9 to 11, 30, 49 to 53 and 63 and sch. 12, para. 7 to the Act (amendments and transitional provision relating to surcharges).

Criminal Justice and Public Order Act 1994 (Commencement No. 14) Order 2007 (SI 2007 No. 621)

This Order brings s. 165 of the Act into force on 6 April 2007. New ss. 107A and 198A are inserted in the Copyright, Designs and Patents Act 1988 by s. 165; the new sections provide for enforcement action under ss. 107 and 198 of th e1988 Act to become the responsibility of local weights and measures officers.

Criminal Procedure (Amendment) Rules 2007 (SI 2007 No. 699)

These Rules, which came into force on 2 April 2007, make the following changes to the Criminal Procedure Rules 2005 and other instruments:

a new Part 4 (service of documents) is added in substitution for the existing Part 4, which consolidates, revises and simplifies the rules about the service of documents in criminal cases;
a new Part 14 (indictments) is added in substitution for the existing Part 14, which revises and simplifies the rules about the service, form and content of indictments;
a new Part 28 (witness summonses, warrants and orders) is added in substitution for the existing Part 28;
the rules contained in the Indictment Rules 1971 are revoked (they are superseded by the new rules in Part 14);
Part 19 (custody and bail) is amended to allow for applications under s. 47(1E) of the Police and Criminal Evidence Act 1984 to vary bail conditions before charge, and to remove some inconsistencies;
Part 31 (restriction on cross-examination by a defendant acting in person) is amended so that the rules in that Part apply in magistrates' courts as well as in the Crown Court;
the Glossary is extended to include explanations of the expressions 'requisition' and 'written charge'.

Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2007 (SI 2007 No. 706)

This Order continues ss. 1 to 9 of the Act in force until 10 March 2008.

Police and Justice Act 2006 (Commencement No. 2, Transitional and Saving Provisions) Order 2007 (SI 2007 No. 709)

This Order brings the following provisions of the Act into force:

on 31 March 2007, s. 4 (police authorities as best value authorities);
on 1 April 2007:

s. 1 and sch. 1 except para. 30(3) (national policing improvement agency)
s. 2 insofar as it introduces sch. 2, paras. 16 to 23 and 27 to 29 (amendments to the Police Act 1996);
s. 6 and sch. 4 (consultation with the Association of Police Authorities and the Asscoaition of Chief Police Officers);
s. 7(2) (standard powers and duties of community support officers);
s. 8 (powers of community support officers to deal with truants);
s. 9 insofar as it introduces sch. 5 paras. 4 and 5(2)(a);
s. 10 and sch. 6 (police bail);
s. 12 (power to stop and search at aerodromes);
s. 15 (accreditation of weights and measures inspectors) and sch. 7 (amendments of the Police Reform Act 2002, which have the effect of providing extra powers for weights and measures inspectors);
s. 16 (power to apply accreditation provisions);
part 4 (i.e. ss. 28 to 33), which is concerned with inspectorates of various aspects of the criminal justice system;
s. 45 (attendance by accused at certain preliminary hearings) to the extent not already in force and s. 46 (live link bail) in the local justice area of Lambeth and Southwark;
sch. 14, paras. 1, 5, 8, 11, 14, 16, 30, 31, 35, 37, 40, 42 to 46, 48, 52, 58 and 60 (minor and consequential amendments);
sch. 15, part 1(A) and certain repeals in sch. 15, part 1(B) (repeals relating to part 1 of the Act);
sch. 15, part 2 (repeals: powers of police etc.) insofar as relating to the Aviations Security Act 1982, s. 27, the Police and Criminal Evidence Act 1984 and the Criminal Justice Act 2003;

on 6 April 2007:

s. 26 (anti-social behaviour injunctions);
s. 27 and sch. 10 (injunctions in local authority proceedings and arrest and remand);
sch. 14, paras. 12, 13 and 33 (minor and consequential amendments);
sch. 15, part 3 (repeals: crime and anti-social behaviour) as it relates to the Anti-social Behaviour Act 2003.

Discharge of Fines by Unpaid Work (Pilot Schemes) (Amendment) Order 2007 (SI 2007 No. 773)

This Order has the effect of adding eight Welsh local justice areas to the areas in which the scheme is being piloted and to extend the pilot scheme itself until 31 March 2008.

Criminal Defence Service (Financial Eligibility) (Amendment) Regulations 2007 (SI 2007 No. 777)

These Regulations increase the financial limits under the principal order by substituting £12,007, £21, 487, £5,463 and £3,720 for £11,590, £20,740, £5,304 and £3,156 (respectively) wherever they appear.

Criminal Defence Service (General) (No. 2) (Amendment) Regulations 2007 (SI 2007 No. 780)

These Regulations increase the financial limits under the principal order by substituting £201 for £194 in reg. 5(3) and £95 for £92 in reg. 5(5).

Ticket Touting (Designation of Football Matches) Order 2007 (SI 2007 No. 790)

This Order designates certain football matches for the purposes of the Criminal Justice and Public Order Act 1994, s. 166.

Violent Crime Reduction Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 858)

This Order brings the following provisions of the Act into force:

on 6 April 2007:

ss. 23 and 24 (persistently selling alcohol to children);
s. 26 (designated public places);
ss. 28 and 29 (dangerous weapons);
s. 30 (minimum sentences for certain firearms offences);
s. 31(3) (prohibition on sale and transfer of air weapons except by registered dealers) for certain specified purposes only;
s. 35 (restriction on sale and purchase of primers);
s. 49 and sch. 1 (consequential amendments relating to minimum sentences);
s. 50(1), (2) and (5) and s. 50(3) and (4)(a) and (b) for certain purposes (supplemental provisions for Part 2);
s. 51 (weapons etc.: Northern Ireland) to a limited extent only;
ss. 52 and 53 and sch. 3 (football);
s. 62 (offering or agreeing to re-programme a mobile phone);
related repeals in sch. 5;

on 31 May 2007:

ss. 45 and 46 (power search school pupils and further education students for weapons) as they extend to England;
s. 48 (amendment of police powers to search schools etc. for weapons);
s. 58 (which inserts a new power of entry and search of a relevant offender's home address in the Sexual Offences Act 2003);
sch. 2, para. 13 (weapons etc.: Northern Ireland).

Community Legal Service (Financial) (Amendment) Regulations 2007 (SI 2007 No. 906)

These Regulations amend the principal instrument (SI 2000 No. 516) so as to increase financial eligibility limits.

Part 7 of the Anti-terrorism, Crime and Security Act 2001 (Extension to Animal Pathogens) Order 2007 (SI 2007 No. 926)

This Order extends the effect of ss. 58 to 74 of the Act (duties on occupiers) to certain pathogens specified in a newly modified sch. 5 to the Act (set out as a schedule to the Order).

Schedule 5 to the Anti-terrorism, Crime and Security Act 2001 (Modification) Order 2007 (SI 2007 No. 929)

Part 7 of the Anti-terrorism, Crime and Security Act 2001 makes provision for the security of the pathogens and toxins listed in sch. 5 to that Act. This Order modifies sch. 5 inter alia by adding the viruses listed in art. 3, the rickettsiae listed in art. 4(b), the bacteria listed in art. 5, the fungi listed in art. 6 and the toxins listed in art. 7(2).

Criminal Justice Act 2003 (Surcharge) (No. 2) Order 2007 (SI 2007 No. 1079)

This Order (which replaces SI 2007 No. 707, which never had effect) specifies the cases in which a court's general duty, under the Criminal Justice Act 2003, s. 161A, to order the payment of a surcharge when dealing with an offender is not to apply. The effect of the Order is that a surcharge is payable only where an offender is ordered to pay a fine. The Order also specifies the amount of the surcharge as £15.

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