For the purposes of the Trade Descriptions Act 1968, s. 19(1), the 'prosecutor' is the local authority, and not the individual officer of the authority who institutes the proceedings on the authority's behalf. Time begins to run against the authority as soon as it can be imputed by its officers or employees with knowledge of the alleged offence, whereas the individual who instigates the prosecution on its behalf almost certainly learns about the offence at a much later stage: R (Donnachie) v Cardiff Magistrates' Court [2007] EWHC 1846 (Admin).

B6.98 False Trade Descriptions: Elements

In R (Donnachie) v Cardiff Magistrates' Court [2007] EWHC 1846 (Admin) at [25], the Divisional Court distinguished between offences under the Trade Descriptions Act 1968, ss. 1(1)(a) and 1(1)(b) in the context of the sale of a taxi with a falsified odometer, and of the time-limits on prosecutions imposed by s. 19 of the Act (see B6.95 above):

Section 1(1)(a) and 1(1)(b) create two separate absolute liability offences under the Trade Descriptions Act 1968. The use of the word 'applies' in 1(1)(a) and 'supplies' in 1(1)(b) marks the difference between the two offences. A false trade description can be applied to goods even before they are sold. This section is clearly designed to make it an offence to turn back the odometer and to supply or offer to supply a vehicle with an altered odometer. It may well be that in some cases it is only on sale or offer for sale that the altered reading is discovered but this does not affect the fact that to alter an odometer in itself is to apply a false trade description to a car, namely that it has been driven a lesser number of miles than it has in fact been driven.

B12 Offences relating to Weapons

B12.65 Contravention of Prohibition on Possession or Acquisition of Firearms by Persons under Specified Ages The Violent Crime Reduction Act 2006 (Commencement No. 3) Order 2007 (SI 2007 No. 2180) brings into force, on 1 October 2007, inter alia s. 33 of the Act which amends ss. 22 and 24 of the Firearms Act 1968 so as to increase the age restrictions there mentioned from 17 to 18.

B12.69 Transfer of Firearms to be in Person

The Violent Crime Reduction Act 2006 (Commencement No. 3) Order 2007 (SI 2007 No. 2180) brings into force, on 1 October 2007, inter alia s. 32 of the Act which requires that sales of air weapons must be face to face.

B12.76 Business, Export and Transactions involving Firearms

The Violent Crime Reduction Act 2006 (Commencement No. 3) Order 2007 (SI 2007 No. 2180) brings into force, on 1 October 2007, inter alia s. 31(2) of the Act, which extends the restrictions on sales etc in s. 3 of the Firearms Act 1968 to air weapons, and ss. 36 to 40, which impose restrictions on th emanufacture, import and sale of realistic imitation firearms.

B12.103 Sale or Letting on Hire of a Crossbow

The Violent Crime Reduction Act 2006 (Commencement No. 3) Order 2007 (SI 2007 No. 2180) brings into force, on 1 October 2007, inter alia s. 44 of the Act, which amends the Crossbows Act 1987, s. 1 so as to apply the restriction on sale etc to persons aged under 18.

B12.104 Purchase or Hiring of a Crossbow

The Violent Crime Reduction Act 2006 (Commencement No. 3) Order 2007 (SI 2007 No. 2180) brings into force, on 1 October 2007, inter alia s. 44 of the Act, which amends the Crossbows Act 1987, s. 2 so as to apply the restriction on purchase or hiring to persons aged under 18.

B12.106 Sale of Knives and Certain Articles with Blade or Point

The Violent Crime Reduction Act 2006 (Commencement No. 3) Order 2007 (SI 2007 No. 2180) brings into force, on 1 October 2007, inter alia s. 43(1) and (2) of the Act, which amends the Criminal Justice Act 1988, s. 141A so as to apply the restriction on sale etc to persons aged under 18.

B20 Offences related to Drugs

B20.22 The Misuse of Drugs Regulations 2001

The Misuse of Drugs and Misuse of Drugs (Safe Custody) (Amendment) Regualtions 2007 (SI 2007 No. 2154) make a series of minor amendments to the 2001 Regulations and reclassify the drug Midazolam.

C2 Evidence and Procedure

C2.15 Duty to Provide Information

In O'Halloran v United Kingdom (App Nos 15809/02 and 25624/02) (2007) The Times, 13 July 2007 a challenge to the Road Traffic Act 1988, s. 172, based on the Human Rights Act 1998 and the ECHR, Article 6.1, failed before the European Court at Strasbourg. The Court ruled that a person's right not to be forced into self-incrimination was not absolute right and that the right to require an actual or potential suspect to provide information which might contribute to his conviction does not automatically involve a violation of Article 6. In the case of s. 172, those who own or drive motor vehicles know that by doing so they subject themselves to a regulatory regime. Furthermore, s. 172 involves only a limited inquiry. The identity of the driver is only one element in a road traffic offence such as speeding, and there is no question of a conviction arising solely on the basis of information obtained as a result of s. 172(2)(a). No offence is committed if the keeper of the vehicle shows that he does not know and cannot with reasonable diligence discover who the driver was.

C3 Offences Relating to Driving Triable on Indictment

C3.13 Causing Death by Dangerous Driving: Sentencing

In A-G's Ref (No. 56 of 2007), Legrys [2007] EWCA Crim 1605, the Court of Appeal considered the issue of sentencing in a case of causing death by dangerous driving involving something close to the lowest level of culpability, with several mitigating circumstances and no aggravating ones. It was a case involving a misjudged overtaking manoeuvre, where D attempted to overtake a long vehicle and was unable to avoid a fatal collision with an oncoming motorcycle. It was an uncharacteristic error by a man of 59 with an excellent driving record. Character witnesses described D as a quiet, careful, gentle and kind person, and that was reflected in the manner in which he drove. The trial judge imposed a 12-month sentence, suspended on condition that D undertook 200 hours unpaid work. He referred to prison overcrowding as one of the reasons for suspending the sentence.

It was argued that the sentence was undely lenient, but the Court of Appeal disagreed, even though they did not consider prison overcrowding to be a good reason for suspending it. Hooper LJ said:

There is nothing in the circumstances of the accident or in the history of the offender's driving to suggest that the offender himself realised that what he was doing was dangerous and could put the lives of others at risk. His error was to underestimate how long it would take to overtake the vehicles in front of him. In a more powerful car he would no doubt have succeeded. We are, for our part, not prepared to say that the offender was reckless in the sense of realising the risk of what he was doing.

When the offender realised that he could not complete the manoeuvre safely, it was too late to return to his own side. The fact that the tractor and trailer were unlit may well have prevented [the motorcyclist] from taking any avoiding manoeuvre.

Nonetheless we cannot describe the sentence as unduly lenient. Even if it were, we would not have altered the sentence given all the circumstances including the fact that the offender has all but completed his 200 hours unpaid work.

Unfortunately, it seems that judges will still be required to impose custodial sentences in all but the most marginal of s. 2B cases (where a community order may be acceptable) but Legrys and Modhvadia indicate that some sentences may properly be suspended, even where the more serious offence is proved.

D1 Police Powers

D1.102 Interception of Communications and Surveillance of Premises

Covert recordings of telephone conversations and prison visits involving a remand prisoner were held to be admissible in Kelly [2007] EWCA Crim 1715. It would seem that the interceptions were made within the prison, with the consent of the governor, and did not involve any interference with a public telecommunications system.

The surveillance operation was found to have been lawfully conducted in accordance with the Code of Practice on Covert Surveillance. The Court of Apeal rejected arguments that the prison governer had not been fully informed of the purpose of the surveillance and interceptions, or that its use at D's trial would be unfair.

D1.109 Interrogation of Suspects

The obligation to caution and the scope of the Police and Criminal Evidence Act 1984, s. 67(9) were considered by the Court of Appeal in Devani [2007] EWCA Crim 1926. D, a young solicitor, was observed by prison operational support officers during a visit to a client who was on remand for attempted murder. CCTV images appeared to show the client passing her two envelopes. She was challenged over this, and questions were put to her first by the officers, and later by a more senior prison officer in the presence of an experienced partner from her firm, who happened to be visiting another client at the time, but she was still not cautioned. It transpired that one of the letters was addressed to the client's co-defendant and contained plans to fabricate evidence. She was charged with an attempt to pervert the course of justice.

The trial judge rejected an application to exclude the evidence of the three prison officers pursuant to the Police and Criminal Evidence Act 1984, s. 78 for alleged breaches of Code C, para. 10.1. Dismissing her appeal against conviction, the Court of Appeal ruled that the prison officer did, but the support officers did not, fall within s. 67(9) so as to be directly subject to the PACE Codes. When the support officers first challenged her, it was in any case too soon in the process of observing, and drawing possible conclusions, for an obligation caution to have arisen. They did not at that stage have sufficient grounds to suspect an offence so as to trigger the obligation to caution before questioning.

As for the subsequent failure to caution, the trial judge held that D had not been prejudiced by this, given the status and the experience of D herself and, in particular, the presence by her side of her principal, an extremely experienced legal practitioner.

Contrast Miller [2007] All ER (D) 146 (Jul).

D8 Disclosure

D8.17 Defence Disclosure

Pending the commencement of the Criminal Procedure and Investigations Act 1996, s. 6C (inserted by the Criminal Justice Act 2003, s. 34, but not yet in force) and associated provisions, the duty of disclosure that may lawfully be imposed on the defence by the CrimPR, r. 3.10, was examined by the Divisional Court in R (Kelly) v Warley Magistrates Court [2007] EWHC 1836 (Admin).

Rule 3.10 provides:

In order to manage the trial or (in the Crown Court) appeal, the court may require a party to identify-(a) which witnesses he intends to give oral evidence . . . (f) what written evidence he intends to introduce; (g) what other material, if any, he intends to make available to the court in the presentation of the case; (h) whether he intends to raise any point of law that could affect the conduct of the trial or appeal . . .

The defence provide details within 14 days to the prosecution of their witnesses to enable the prosecution to consider any issues in relation to making applications to admit bad character information under the provisions of the Criminal Justice Act 2003.

The defence questioned whether such an order could lawfully be imposed under the rules, given that it purported to interfere with matters of litigation privilege and legal professional privilege and that primary legislation providing such a power was not yet in force.

The view of the court (Laws LJ and Mitting J) was that a 'case management' order backed only by moderate or proportionate procedural sanctions might be acceptable in this context, but an unconditional order of the kind imposed in this case was not. Laws LJ ruled (at [33]) that any order which absolutely prohibited a party from calling a witness whose identity he had not disclosed in advance would be unacceptable, because it would in effect purport to change the general law of evidence. Agreeing with Laws LJ, Mitting J added (at [37]):

The imposition on a defendant of a requirement to give advance disclosure of the identity of some witnesses has, hitherto, been thought to require primary legislation: s. 6A(2) Criminal Procedure and Investigations Act 1996 (evidence of alibi) and s. 20 CPIA 1996(3) (expert evidence). I am inclined to think that the imposition of an effective sanction, such as a prohibition on relying on the evidence of a witness not previously identified, would require primary legislation.

D11 Arraignment and Pleas

D11.75 Judicial Indications of Sentence

Goodyear [2005] 3 All ER 117 was considered in Kulah [2007] EWCA Crim 1701 in the context of sentencing dangerous offenders. Lloyd Jones J, giving the judgment of the court in Kulah, said:

22. We understand that difficulties are encountered in dealing with Goodyear indications in cases where the defendant is charged with one or more offences which are specified offences within Schedule 15 to the Criminal Justice Act 2003 and we hope it may be helpful if we were to offer some observations.

23. We consider that it is not necessarily inappropriate to seek or to give a Goodyear indication merely because a defendant is charged with a specified offence. However, there may be dangers in undertaking this course and it is necessary to warn of them. If an indication is improperly given, a sentencing judge may find himself bound by the "dangerous offender" provisions to impose a sentence which is qualitatively different from the indication he has given. In the alternative, he may consider himself bound by his prior indication to impose a sentence which does not accord with mandatory statutory provisions.

24. The so-called "dangerous offender" provisions in Part 12, Chapter 5, Criminal Justice Act, 2003 are mandatory (Reynolds [2007] EWCA Crim. 538 at paragraph 5). Thus, if an adult defendant falls to be sentenced for a specified offence committed on or after 4th April, 2005, and he is assessed as presenting a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences, the sentencing judge's discretion is circumscribed. If the offence is "serious" (i.e. carries a maximum penalty of 10 years' imprisonment or more) an indeterminate sentence must be imposed. If it is not "serious" an extended sentence must be imposed.

25. Goodyear was argued before the "dangerous offender" provisions came into effect, although judgment was handed down shortly after they came into effect. The impact of these provisions was not before the Court for consideration. Nevertheless, the guidance set out in Goodyear holds good. Of particular significance in this regard is paragraph 65(d) of the judgment:

"[A]ny indication which may be given relates only to the matters about which an indication is sought. Thus, certain steps, like confiscation proceedings, follow automatically, and the judge cannot dispense with them, nor, by giving an indication of sentence, create an expectation that they will be dispensed with."

26. It is axiomatic that a Goodyear indication will be sought before plea. At that time, it will often be the case that the sentencing judge will not be in possession of the information necessary to enable him or her to make the assessment of risk required by each of subsections 225(1)(b), 226(1)(b), 227(1)(b) and 228(1)(b). In this regard we understand that it is now the usual practice of the Probation Service not to produce a pre-sentence report until after the defendant has pleaded guilty or has been convicted.

27. There will, of course, be very clear cases where the assessment that the offender is dangerous is manifest even at that stage, perhaps based only on the antecedent history and the nature of the offending before the court. It may not be difficult, for example, to categorise as "dangerous" a professional armed robber who has a lifetime of convictions for that offence and who habitually carries loaded firearms in the course of his criminal occupation or a serial rapist with a long history of deviant and dangerous criminal sexual behaviour.

28. However, the great majority of cases will not be clear-cut. Pre-sentence and other appropriate reports will not be available. In such cases, it remains a matter for the judge to decide whether it is appropriate to give an indication. Such a situation was foreseen in Goodyear itself (at paragraph 58).

"There will be occasions when experience will remind him that in some cases the psychiatric or other reports may provide valuable insight into the level of risk posed by the defendant, and if so, he may justifiably feel disinclined to give an indication at the stage when it is sought."

As Goodyear (paragraphs 56-59) makes clear, the judge is under no obligation to give an indication and he has an unfettered discretion in this regard.

29. There are particular difficulties in giving an indication in respect of a young offender (under 18 at the date of his plea of guilty or his conviction) because there is the additional option, which is not available when dealing with an adult, of imposing an extended sentence in respect of a serious specified offence.

30. If the Judge decides to give an indication where an assessment of future risk remains to be made he should make the following matters clear.

1. The offence (or one or more of them) is a specified offence listed in Schedule 15, Criminal Justice Act, 2003, bringing into operation the "dangerous offender" provisions contained in Part 12, Chapter 5 of that Act.
2. The information and materials necessary to undertake the assessment of future risk which is required by those provisions are not available and that that assessment remains to be conducted.
3. If the defendant is later assessed as "dangerous", the sentences mandated by the provisions - an indeterminate or extended sentence - will be imposed.
4. If the defendant is not later assessed as "dangerous", the indication relates in the ordinary way to the maximum determinate sentence which will be imposed.
5. If the offender is later assessed as "dangerous", the indication can only relate to the notional determinate term which will be used in the calculation of the minimum specified period the offender would have to serve before he may apply to the Parole Board to direct his release; or, in a case where an extended sentence is the only lawful option, it will relate to the appropriate custodial term within the extended sentence (that is, the indication does not encompass the length of any extension period during which the offender will be on licence following his release). It must be remembered that where an extended sentence is imposed on any offender, the appropriate custodial term cannot be less than 12 months (subsections 227(3)(b); 228(3)(b)).
6. If an indeterminate sentence is mandated by the provisions, the actual amount of time the offender will spend in custody is not within the control of the sentencing judge, only its minimum.

Nevertheless, it seems to us that judges may, understandably, feel a reluctance to give a Goodyear indication in circumstances where they do not yet know how dangerous the defendant really is.

31. Finally in this regard, we would point out that Goodyear (paragraph 70) already imposes an obligation on the prosecution to draw the attention of the judge to any minimum or mandatory sentencing requirements. That obligation includes a duty to inform the judge that the offence charged is a specified offence and of the requirement to undertake the risk assessment required by each of the relevant subsections.

D13 Trial on Indictment: General Matters

D13.46 Special Measures: Position of Defendant

Even though the Youth Justice and Criminal Evidence Act 1999 (prior to amendments inserted by the Police and Justice Act 2006) made no provision for vulnerable defendant to give evidence via video link, it was wrong for a judge to conclude that he had no jurisdiction or power to order that a defendant could avail himself of video link facilities. There might be exceptional circumstances in which that was a sensible method for ensuring the participation of a defendant who was otherwise unable to participate in all or some of the trial process: Ukpabio [2007] EWCA Crim 2108.

D19 Summary Trial: General and Preliminary Matters

D19.39 Unfitness to Plead in the Context of Summary Proceedings

The power of a magistrates' court to proceed under the Mental Health Act 1983, s. 37(3) without a trial (even where D's representatives demand one, and seek to run a defence of insanity) was examined in R (Singh) v Stratford Magistrates' Court [2007] EWHC 1582 (Admin). Having considered Lincolnshire (Kesteven) Justices, ex parte O'Connor [1983] 1 WLR 335, Hughes J said:

32. Plainly, since in that case everyone wanted a hospital order made, the court did not have to apply itself to what should happen if they did not. The consent of representatives is in any event of necessarily limited significance if the accused is unfit to give instructions or receive advice. I agree that the submission of such representatives, or of the accused if he is in a state to make decisions, is a factor of considerable importance. I am however unable to accept that either the accused or his representatives should be invested with what is in effect a veto upon the exercise of the power.

33. The flexibility of the section 37(3) procedure was emphasised by this court in R(P) v Barking Youth Court [2002] 2 Cr App Rep 294. That was a case of apparent unfitness to stand trial rather than of alleged insanity at the time of the offence, but the same principles seem to me to apply. This court held that the magistrates ought not to have embarked upon a trial of the issue of fitness to plead, as would be done in the Crown Court. There was no necessity for the determination of that issue. Instead they should first have determined the factual question whether the accused had done the act or made the omission charged, and then have considered whether a section 37(3) order might be appropriate, and obtained reports for the purpose. That demonstrates that the making of a section 37(3) order need not be predicated on the determination of the issue of fitness to plead but may be based more broadly upon the mental state of the accused, providing that the acts/omissions are proved. Similarly, in CPS v P [2002] EWHC 946 (Admin), which was another case of alleged unfitness to stand trial, this court held that such an issue ought not to be tried as a freestanding issue on an application to stay for abuse of process. I do not say that it will never be right to decide that the issue of insanity ought to be determined as a freestanding issue, and I can envisage situations in which it should be. But what these cases show is that there is no entitlement to such trial of an issue; rather the interests of justice and of the accused must be considered individually in each case.

34. An accused or his representatives must, in my view, to be entitled to have fully considered the submission that there should be a trial of the issue of insanity even if an order under s 37(3) is likely. It might be very important to the accused that it be established that he was insane, rather than malicious, particularly if he is now significantly better. It might also be of real concern to others involved, or to the public, that it be known, if it be the fact, that he was legally insane at the time of the acts charged. If there is such good reason, it is open to the magistrate, I am satisfied, to determine the issue of insanity without returning a verdict. He can then, in a suitable case, go on to consider section 37(3). If he contemplates taking such a course, he must make clear that the option of section 37(3) will remain for consideration afterwards. Magistrates do sometimes proceed to trial of an issue. It may happen if the basis for sentencing is disputed (a Newton hearing) or occasionally upon a voire dire. Further, section 37(3) itself provides an example in the fact-finding exercise required before it can be applied. The magistrate has a discretion, which must be exercised judicially, whether to adopt that course or not. And he has a discretion, which must be similarly exercised, whether to invoke section 37(3) and if so, at what stage.

35. I agree with Mr Murphy that in all cases where an order under section 37(3) is a possibility, the court should first determine the fact-finding exercise. That may be concluded, as here, on admissions, or it may involve hearing evidence. If the court is not satisfied that the act/omission was done/made, an unqualified acquittal must follow, whatever the anxieties may be about the accused's state of health.

. . .

38. I am satisfied that both in cases of alleged insanity at the time of the offence and of apparent unfitness to stand trial, the magistrates have the power to abstain from either conviction or acquittal but rather to make a hospital or guardianship order, if such be justified medically, and provided only that it is shown that the accused did the act or made the omission charged. That is a medical rather than a penal disposal. It is consistent with the provisions which two centuries of statutes since the Criminal Lunatics Act 1800 have made for medical disposal in such cases when the accused is charged on indictment. It is in the public interest that if a man suffering from sufficient mental illness to warrant detention in hospital or reception into guardianship has committed an act or omission which would, but for his condition, be an imprisonable criminal offence, the court should have power to make a protective order of one or other kind.

39. I am also satisfied that the magistrates' court has the power, in an appropriate case, to try the issue of insanity and pronounce its conclusion upon it, without convicting or acquitting the accused, provided that the conditions for making a hospital or guardianship order under section 37(3) are met. Equally, however, if satisfied that there is no purpose in resolving the issue of insanity, and if a section 37(3) order is going to be made, the court can deal with the case without trying that issue.

40. If it is clear that no section 37(3) order is going to be possible on the medical evidence whatever happens, then in the absence of some other compelling factor the case must proceed to trial, so that if the accused was insane, he is acquitted, and if he was not, he is convicted.

41. Before embarking on a case in which section 37(3) may be applied, magistrates should make it clear that it is a possibility and should invite submissions upon the course to be adopted. In particular, careful consideration must be given to any reason advanced why the issue of insanity should be tried. Such an application should be resolved having regard to the interests of justice, which include, but are not limited to, justice to the accused.

42. The likely occasion for successive hearings in a potential section 37(3) case, or any case in which insanity is alleged, are such as to make it suitable for allocation to a District Judge where such can conveniently be achieved.

E1 General Provisions

E1.1 Purposes of Sentencing

In Bowker [2007] EWCA Crim 1608 the Court of Appeal recognised that the purposes identified in the Criminal Justice Act 2003, s. 142(1) are applicable to offenders aged over 18 at the time of conviction, even if they were under that age when committing the offence in question. On the other hand, allowance ought to be made (as required by Ghafoor [2003] 1 Cr App R (S) 84) for the offender's youth at the time of offending and his culpability must be assessed on that basis. Latham LJ said:

Subsection (2) of that Act expressly disapplies that provision in relation to offenders under the age of 18 at the time of conviction. Whilst therefore it is clearly right that a person who has committed an offence whilst under the age of 18 should be sentenced on the basis that his culpability is to be judged by reference to his age at the time of the offence, nonetheless, the necessary sentencing disposal has to take account of the matters set out in section 142(1) if he is convicted after he has reached the age of 18. When sentencing those under 18, the court will generally focus more on their requirements and their rehabilitation. Section 142 suggests that for those over the age of 18, however, more general public policy considerations, in particular deterrence, can play a greater part.

[The] provisions of Article 7.1 are clearly directed to the mischief of retroactive or retrospective changes in the law. In the present case, there was no change in the law. The penalties for violent disorder remained the same. All that changed was the penal regime to which the appellant would be exposed as a result of the normal operation of existing law to his age at the time of conviction. For those reasons, we do not consider that the court is constrained in any way by the provisions of Article 7 in situations such as the present.

E22 Recommendation for Deportation

E22.1 Power to Recommend for Deportation

Failure to give written notice in accordance with the Immigration Act 1971, s. 6(2) does not necessarily render a recommendation for deportation invalid: Abdi [2007] EWCA Crim 1913. Having considered Nazari [1980 1 WLR 1366 and Soneji [2005] UKHL 49, Toulson LJ said:

29. The language of s 6(2) might suggest that its purpose is to avoid the risk of a person being recommended by a court for deportation who is not eligible to be deported because he is a British Citizen. But the appellant is not a British citizen. It is difficult to see why Parliament should have intended that a recommendation for deportation of a non-British citizen should be automatically invalidated by a failure to serve a notice which would on the facts have been irrelevant to the offender.

30. The purpose of s 6(2) may, however, be the wider purpose suggested in Nazari of putting the defendant on notice of the possibility of the making of a recommendation for deportation, so as to give him time to prepare to address the possibility on the merits. Even on that basis, in this case the appellant and his counsel were aware of the risk of such a recommendation and Mr Banks was able to make his submissions to the recorder on it. He also recognised that it is a particularly unappealing point in terms of any substantial merit in circumstances where the appellant's case was conducted on the basis that the appropriate notice had been served and the judge was led to believe that it had been served.

31. If it were to happen that a court made a recommendation for deportation against a person who was a British citizen, and therefore ineligible to be deported, there would be a number of other safeguards within the statutory scheme. First, the recommendation is just that - a recommendation and not an order. It would be open to the offender or his representatives to draw the position to the attention of the Secretary of State. Secondly, there could be an appeal against the recommendation to this court. Thirdly, if a deportation order were made, there could be an appeal to the Asylum and Immigration Tribunal. Fourthly, as a matter of practicality, the process for carrying out a deportation requires Home Office officials to obtain personal details regarding the deportee's citizenship in order to prepare the necessary travel documentation.

32. Recommendations for deportation are not always opposed by defendants. Sometimes a defendant will recognise that a deportation recommendation is inevitable, or may even welcome it, and may wish the sentencing process including the recommendation for deportation to be completed as quickly as possible. According to Mr Banks' argument, if in such a case the defendant had not received the prescribed notice, the court would have no power to make an unopposed recommendation for deportation, but would be compelled to adjourn the matter to everyone's cost and inconvenience.

33. Bearing these considerations in mind, we do not believe that the court should impute to Parliament an intention that non-compliance with s 6(2) should necessarily render a recommendation for deportation invalid. Unless that were the proper construction of the Act, the ground of appeal based on lack of notice must in this case fail.

F4 Competence and Compellability of Witnesses

F4.16 Children and Persons of Unsound Mind

Powell [2006] EWCA Crim 3 was distinguished in DPP v R [2007] EWHC 1842 (Admin), in which a mentally handicapped girl who had made an intelligible video-recorded complaint against a similarly handicapped boy of the same age admitted when cross-examined at the trial that she could no longer remember what had happened. Giving the judgment of the court, Hughes LJ said:

21. This was not a case, on the Justices' findings, of incompetence. The girl may have had her learning difficulties. Her evidence may have needed treating with some care in consequence, but the problem at trial was not capacity to understand or to give intelligible answers, it was loss of memory. Recollection is quite different from competence. Of course, absence of recollection may, in some cases, co exist with absence of competence, but they do not necessarily run together. Persons who have no recollection for an event may be perfectly competent. A simple example is the witness who is knocked out in the course of whatever happened which founds the charges, and has absolutely no recollection of what occurred, but is otherwise fully functioning.

22. This girl was not like the child in R v Powell. She could understand the questions and she could give intelligible answers. The problem was that her perfectly intelligible answer was, "I cannot remember". She was not incompetent. It may be that she could not, for lack of memory, give useful evidence by the time of trial, but that is a different question. The ruling that she was incompetent was erroneous. That does not, of course, mean that such evidence as she had given to the court by way of the video interview was necessarily reliable. The inability to test it by cross examination either might or might not mean that it was unsafe to rely upon it. That, as I previously said, is an assessment which the trial court has to make individually in every case. An account originally given might, in some cases, be so obviously accurate that it would be wrong to discount it. In a good many more cases, no doubt, the inability to test it will mean that one simply cannot know whether what was said in the original account was accurate or not.

15. If at the time that a court is considering whether to give a special-measures direction enabling video recorded evidence in chief to be received, and is addressing the questions posed on that issue by section 27 of the Act [ie the YJCEA 1999], it then appears that the witness was at the time of the interview unable to understand questions, or to give answers to them which can be understood, then that, of course, would be a reason for not making a special-measures direction under section 27. That is not this case. Competence must also be addressed, it is clear, at the time of trial. If by the time of the commencement of the trial it is clear that the witness is mentally incompetent, according to the test in section 53, then it is open to the court to refuse to receive the video interview under section 27(4) on the grounds that the witness will not be available for cross examination. Ordinarily one would expect that consequence to follow.

16. If, as here, by the time the question of competence is raised before the court the video interview has already been admitted, then it is evidence in the case. Section 27(4) does not extend to permitting the court, retrospectively to direct that it be "unadmitted". What is likely to happen, in such a situation, is that the court may well place little or no weight on the video recorded interview, precisely because it cannot be tested in cross examination. That will not necessarily be so. It will depend upon the assessment of the evidence as a whole, and of the state of the original interview.

17. R v Powell [2006] EWCA Crim 3, which involved a child witness who was only three years of age, was a case of this kind. As the Court of Appeal ruled, she had just about passed the threshold of competence at the time that the video interview was conducted and that had justified the admission of the interview. Once cross examination was attempted it was clear that she did not understand the questions. She did not comprehend the importance of telling the truth, and she was not able to give answers that could be understood. She could be demonstrated at that stage to fail the test under section 53, which is, in substance, a test of intelligibility. The Court of Appeal held in that case that the question of competence should have been reviewed and the case should have been withdrawn from the jury. The reason why it should have been withdrawn from the jury was that in that state of the evidence no reasonable jury properly directed could convict.

Does the fact that witness has been declared as not competent to give evidence because of a lack of mental capacity, necessarily mean that the witness is then 'unfit to be a witness because of his. . . mental condition' within the context of the CJA 2003, s. 116(2)(b)?

25. Section 114 separately provides for the admission of a hearsay statement, that is to say a statement not made in oral evidence in the proceedings, if (amongst other circumstances) according to section 1(d) the court is satisfied that it is in the interests of justice for it to be admissible. The difference between those two sections needs to be noted. If section 116(2)(b) applies then the evidence is automatically admissible, subject only to a possible submission under section 78 of the Police and Criminal Evidence Act. If section 114 alone is available as a possible route to admissibility, the court has a judgment to make and it must apply itself carefully to all the circumstances in the case, including the specific ones set out in section 114(2). Essentially the overall question is whether it is in the interests of justice for the hearsay statement to be admitted. Where it is the sole evidence, it will often, though not necessarily, not be safe to admit it.

26. The submission made on behalf of the defendant to this appeal is that section 116(2)(b) is concerned only with the ability of the prospective witness physically to get to court. [Counsel] says this girl was there at court and present to be asked questions. That means, he says, that she could not be within section 116(2)(b). I am quite satisfied that that is not what the section says. The section addresses fitness to be a witness. Ali Sed [2004] EWCA Crim 1294, [2004] All ER (D) 395 (May) was in fact such a case. The witness was a woman of 81 in the grip of Alzheimer's disease. The disease had significantly worsened between the making of a statement near to the time of the alleged offence and the time of the trial. She had been competent at the time of the former, but she was unable to give evidence by the time of the trial.

27. It seems to me that in almost every case in which a witness is, at the time of the trial, incompetent . . ., he or she will also for that reason, never mind any other, be a witness within section 116(2)(b) who is unable, because of his mental condition, to be a witness. Counsel, who have appeared before us, have been unable to think of an example in which that would not be so. I think we should be careful not to exclude the possibility that circumstances may exist, which it has not been necessary to foresee here, but by and large a witness who is incompetent is likely to be within section 116(2)(b).

. . .

30. We should perhaps record that at least in the case of supervening loss of memory, as distinct from supervening loss of competence, sections 139 and 120 of the Criminal Justice Act 2003 also apply, and the video interview would be admissible as evidence of its contents as a means of refreshing the memory of the witness who had forgotten. We leave for another day the question of whether sections 139 and 120 have any application in the event of supervening incompetence.

F11 Admissibility of Previous Verdicts

F11.6 Relevance and Admissibility of Acquittals

Z [2000] 2 AC 483 was considered in L [2007] All ER (D) 81 (Jul), in which at a trial for rape at which the defence was consent, evidence was admitted as to a single previous incident in which D had been acquitted of a similar offence in respect of a girl of similar age to the present complainant. The defence on that earlier occasion had been that no intercourse had occurred. Testimony of the former complainant was put before the jury on the basis that it was capable of proving a propensity to commit sexual offences against young girls.

F12 Character Evidence: Evidence of Bad Character of Accused

F12.2 Bad Character

Possession of violent images and rap lyrics referring to intended violence on D's birthday (the day on which he was accused of committing a violent assault) were held to be admissible evidence of bad character in Saleem [2007] EWCA Crim 1923.

The real issue for the jury to decide . . . was the reason for [D's] presence in the park in the vicinity of the attack at that time of night. It seems to us that a jury considering the evidence of the rap lyrics and the violent images with logic and common sense could only have concluded that the evidence was relevant to that issue, as it went to disproving an innocent explanation. . .

Although the judge should have given the jury much more help than he did, we do not consider that his failure to do so rendered the conviction unsafe, as the jury would have appreciated the relevance of the evidence.

F12.2 Bad Character

Technically, the prosecution rely on 'evidence of bad character' if they use circumstantial evidence to show that D was involved in a series of similar offences, even if that evidence is not used for the purpose of suggesting that he has any criminal propensities or to be untruthful. The prosecution ought therefore to make an application under the Criminal Justice Act 2003, s. 101 before adducing such evidence and the judge ought to rule on that issue. But in Wallace [2007] EWCA Crim 1760 the Court of Appeal (having gained some assistance from the judgment of the Lord Phillips CJ in Campbell [2007] EWCA Crim 1472) ruled that as a matter of common sense this did not really matter:

33. We very much doubt whether the draftsman of the bad character provisions in the 2003 Act had in mind cases such as the present where the issue for the jury is the inference to be drawn from circumstantial evidence . . .

43. This was not a case in which the judge was required to give any bad character direction to the jury. He properly directed the jury about the relevance of the evidence as circumstantial evidence and the fact that it was or may have been bad character evidence that should technically have required admittance through s.101 gateway was neither here nor there.

44. It would of course always be possible in a case such as the present where evidence falls technically within the definition of bad character, albeit its admission is received for some quite different purpose, for the parties to agree to its admission under s.101(1)(a). That in our view would be the simplest course. It did not happen in this case. But if, as appears to us to be the position, the evidence in question did fall within the wide definition of "bad character" there should strictly speaking have been an application to admit it under s.101(1)(d). Had there been such an application it would inevitably have been successful. No "bad character" direction to the jury would have been necessary. Indeed no reference to "bad character" in the commonly understood sense of the words would have been necessary at all. The case should, and no doubt would, have been summed up just as it was, as a case that depended on circumstantial evidence.

45. We are completely satisfied the appellant's conviction is safe. . .

F12.12 Proof of Propensity

Following the dismissal of the appellant's appeal in Campbell [2007] EWCA Crim 1472 (as to which see the July update), the following point of law of general public importance was involved in the decision, namely, whether, and in what circumstances, a juror might have regard to evidence of a person's bad character that had been admitted under a gateway in Ch 1 of Pt II of the Criminal Justice Act 2003 for a purpose other than the one or ones for which that gateway had rendered it admissible: Campbell [2007] All ER (D) 297 (Jul).

F12.20 Multiple Charges and Accusations: Risk of Collusion between Witnesses

Where two or more complainants (or complainants and supporting witnesses) make similar accusations against a defendant, an issue may arise as to whether the similarity is derived from collusion between them or perhaps from the fact that one is making a 'copycat' allegation inspired by what the other has said. A third possibility, especially if they have discussed the events (albeit innocently) together, is that there may be 'innocent contamination', i.e. they may be consciously or unconsciously influenced in their evidence through hearing of complaints made by others. Such risks may be negligible where (as in Chopra [2006] EWCA Crim 2133) the complainants have had little if any opportunity to meet or communicate, although even then they may have been told about other incidents. The risk will be much greater where they are friends, siblings (as in H(A) [1995] AC 596) or attend the same school.

Lamb [2007] EWCA Crim 1766 is an example of strikingly similar allegations made by girls who attended at the same school. The complaint in each case was that D, a schoolteacher, behaved sexually towards them (in breach of trust) at a leavers' ball. AB made a complaint concerning the 2004 leavers' ball and CD made a similar complaint concerning the 2005 ball. Although the complainants did at one point discuss their experiences (and one persuade the other to make a supporting complaint) there was no real suggestion of deliberate conspiracy or collusion. The defence did however submit that there was a risk of 'innocent contamination', and the central argument on appeal was that the trial judge failed properly to direct the jury as to that issue. Instead, he dealt at length with collusion, which was not appropriate on the facts. In the judgment of the Court of Appeal:

not only was the necessary point not made, but the wrong point was emphasised. The jury would have been likely to think that, having rejected collusion, as they were invited to do, they were entitled to give the cross-admissible evidence full weight on each count. Whereas they should have been warned that they must take the possibilities of conscious or unconscious influence into account when assessing the weight of the complainants' evidence

F16 Exceptions to the Rule Against Hearsay

F16.15 Discretionary Exclusion of Statements

Sellick [2005] 1 WLR 3257, Al-Khawaja [2006] 1 All ER 543; Xhabri [2006] 1 All ER 776, KM [2003] EWCA Crim 357 and Grant v The Queen [2007] 1 AC 1 were applied in Cole [2007] EWCA Crim 1924. The Court of Appeal rejected arguments that D's right to a fair trial under the ECHR, Article 6 is necessarily infringed where the prosecution are permitted to rely on hearsay statements from dead, frightened or otherwise absent witnesses, even where such evidence is absolutely critical to the prosecution case. Lord Phillips CJ referred to Luca v Italy (2003) 36 EHHR 807 and continued:

14. Is hearsay evidence of a witness who cannot be cross-examined precluded when it is the sole, or the decisive, evidence against a defendant? The wording of the Strasbourg Court in the passage from Luca that we have cited above might suggest so. But Mr Bryan accepted that there was a line of domestic authority that establishes, so far as this court is concerned, that this is not the case. . .

20. Once one moves away, as both the Strasbourg and our domestic jurisprudence clearly have, from the proposition that there is an absolute rule that evidence of a statement cannot be adduced in evidence unless the defendant has an opportunity to examine the maker, it seems to us that there can be only one governing criterion. Is the admission of the evidence compatible with a fair trial? It is that question alone with which Article 6 is concerned.

21. There are many reasons why it may be impossible to call a witness. Where the defendant is himself responsible for that fact, he is in no position to complain that he has been denied a fair trial if a statement from that witness is admitted. Where the witness is dead, or cannot be called for some other reason, the question of whether the admission of a statement from that witness will impair the fairness of the trial will be depend on the facts of the particular case. Factors that will be likely to be of concern to the court are identified in section 114(2) of the Act.

F16.17 Hearsay Admissible in the Interests of Justice

The relationship between the Criminal Justice Act 2003, s. 114(1)(d) and s. 116(2)(b) was commented on (obiter) by Hughes LJ in DPP v R [2007] EWHC 1842 (Admin). See F4.16 above.

F17 Hearsay: Confessions

F17.1 Definition

As to the use of a (vacated) guilty plea as a confession, see also Johnson [2007] EWCA Crim 1651 (considered below at F17.12).

F17.12 Confession Tendered by a Co-accused

Johnson [2007] EWCA Crim 1651 appears to be the first reported case in which the Police and Criminal Evidence Act 1984, s. 76A has not merely been considered but actually found to be applicable on the facts. In this case D had at one stage tendered a guilty plea to a drug importation charge under the Customs & Excise Management Act 1978, s. 170(2)(b). The basis of this plea was stated in writing to be that "his role was only that of a delivery man. He was asked to pick up and deliver a package which he agreed to. He knew what he was doing was wrong. However, he did not know the gravity and seriousness of what he was getting involved in".

D was subsequently allowed to vacate this plea, but his co-defendant (who was running a cut-throat defence) then applied for the basis of D's plea to be admitted in evidence under s. 76A, and it was held that the judge had no discretion to refuse this. Pill LJ said (at [22]):

We understand the frustration of a defendant who is permitted to vacate a guilty plea but not then permitted to enjoy the fruits of vacation by way of a trial unencumbered by the earlier plea. On the evidence, however, the issue at this trial was essentially between the two defendants and the decision in Myers [1997] 4 All ER 314 and s. 76A . . . are designed to ensure a fair trial in that situation.

F19 Inferences from Silence and Non-production of Evidence

F19.6 Out-of-Court Silence under the 1994 Act: Failure to Reveal Facts Later Relied Upon in Court

T v DPP [2007] EWHC 1793 (Admin) emphasises once again that a 'no comment' interview is not in itself enough to trigger the drawing of an inference under Criminal Justice and Public Order Act 1994, s. 34. It is essential to identify some fact that D failed to mention when interviewed but he could reasonably have been expected to mention and which he then relies upon in court. If a given fact was properly dealt with in a prepared statement, prior to the no comment interview, it cannot be the basis of a s. 34 inference.

Hughes LJ added that, where a solicitor advises a young person, and is also to conduct the defence, he must consider whether he might become a witness of fact. Whether an issue under s. 34 might arise cannot always be foreseen until the defence case is made. A solicitor must consider whether such an issue is likely to arise and whether, if it does, he is likely to become a witness of fact. He cannot rely on the pre-trial review form to make this decision.

F19.8 Out-of-Court Silence under the 1994 Act: Waiver of Privilege

Bowden [1999] 1 WLR 823 and Loizou [2006] EWCA Crim 1719 were considered in Hall-Chung [2007] All ER (D) 429 (Jul). D was charged with armed robbery and gave a no comment interview when first questioned by police officers. D's solicitor indicated that he had advised him to make no comment because inadequate disclosure had been made and that he had insufficient information to enable him to advise him. This was subsequently seized upon by the prosecution as a waiver of privilege, so that D could be cross-examined as to whether there were other reasons for the advice being given, such as his lack of any real defence.

Dismissing D's appeal against his conviction, the court held that it did not matter whether the prosecution or defence had first adduced evidence of the waiver of legal professional privilege. Where a solicitor stated in the presence of his client that the client would not be answering questions in interview, and gave reasons or grounds for why he had given that advice, privilege was waived by the defendant through the mouth of his agent acting in the scope of his authority.

On the other hand, judges must exercise independent judgment in each such case as to whether it is fair to permit the prosecution to exploit any such waiver of privilege. Judges should not assume that the prosecution are entitled to take advantage of such waivers in every case.

Corporate Manslaughter and Corporate Homicide Act 2007

This Act creates a new offence of corporate manslaughter (and in Scotland a new offence of corporate homicide). See B1.40 above.

Mental Health Act 2007

This Act, which for the most part is not yet in force, includes amendments to the Mental Health Act 1983. These will affect inter alia the conditions for the making of hospital orders and, by virtue of the change in the meaning ascribed to the term 'mental disorder', aspects of unfitness to plead and the courts' powers to deal with mentally disordered offenders.

Tribunals, Courts and Enforcement Act 2007

This Act, which for the most part is not yet in force, includes provisions which affect qualifications for judicial appointments, new provsions on enforcement which also affect fine enforcement and a series of new offences relating to debt relief orders (a new form of personal insolvency) which mirror the various bankruptcy offences.

Offender Management Act 2007

This Act, which for the most part is not yet in force, makes provision concerning the probation servce, prisons and the management of offenders.

Misuse of Drugs and Misuse of Drugs (Safe Custody) (Amendment) Regualtions 2007 (SI 2007 No. 2154)

These Regulations make a series of minor amendments to the respective principal instruments and reclassify the drug Midazolam.

Violent Crime Reduction Act 2006 (Commencement No. 3) Order 2007 (SI 2007 No. 2180)

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

1. on 22 August 2007, s. 27 (directions to individuals who represent a risk of disorder);
2. on 1 October 2007, ss. 21 and 22 (licence reviews), 31 (prohibition on sale or transfer of air weapons except by registered dealers) insofar as not already in force, 32 (sales of air weapons by way of trade or business to be face to face), 33 (age limits for purchase etc. of air weapons), 34 (firing an air weapon beyond premises), 36 (manufacture, import and sale of realistic imitation firearms), 37 (specific defences applying to the offence under s. 36), 38 (meaning of 'realistic imitation firearm'), 39 (specification for imitation firearms), 40 (supplying imitation firearms to minors), 43(1) and (2) (sale etc. of knives and other weapons), 44 (sale etc. of crossbows), 47 (power to search persons in attendance centres for weapons) and 64 (expenses) and sch. 2, paras. 4 to 8, 10, 12 and 14 and the repeals in sch 5 relating to the Firearms Act 1968 and the Anti-social Behaviour Act 2003.

^ Return to the top