Companion Website

Blackstone's Criminal Practice 2007

January 2007

January 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 January update primarily covers developments occurring or reported in December 2006.

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• Part B: Offences
• Part C: Road Traffic Offences
• Part D: Procedure
• Part E: Sentencing
• Part F: Evidence
• New Legislation

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PART B OFFENCES

B10 Terrorism, Piracy and Hijacking

B10.66 United Nations Measures

The Al-Qaida and Taliban (United Nations Measures) Order 2006 (SI 2006 No. 2952) amends the Al-Qa'ida and Taliban (United Nations Measures) Order 2002 (SI 2002 No. 111), revokes the amendment to that Order (SI 2002 No. 251) and imposes a series of new restrictions, principally restrictions arising from Treasury order or designation, which affect any dealings aimed at supporting Usama bin Laden or other designated persons.

The North Korea (United Nations Measures) Order 2006 (SI 2006 No. 2958) gives effect to UN Security Council Resolution 1718(2006). Under the Security Council Resolution, the Security Council or a committee of the Security Council can designate persons in respect of whom States are to take measures to impose financial restrictions. The measures include the freezing of funds, financial assets and economic resources of such persons and ensuring that any funds, financial assets and economic resources are not made available to them or for their benefit. The Security Council and the Committee can designate persons engaged in or providing support for North Korea's nuclear-related, other weapons of mass destruction-related and ballistic missile-related programmes, and persons acting on behalf of or at the direction of such persons. The Order empowers the Treasury to designate persons in line with the Security Council designations. Inter alia art. 6 prohibits any dealing with funds, financial assets and economic resources of designated persons. Article 7 prohibits making funds, financial assets or economic resources available to designated persons. Article 9 makes it a criminal offence to circumvent the prohibitions or to facilitate the commission of an offence relating to a prohibition. Article 10 provides a licensing procedure to enable, for humanitarian and other purposes, certain acts to be exempted from the prohibitions.

B16 Revenue and Social Security Fraud

B16.13 Sentencing Guidelines

Guidance as to sentencing in substantial revenue fraud cases was provided in A-G's Refs (Nos. 88, 89,90 and 91 of 2006); Meehan [2006] EWCA Crim 3254. The offenders in these cases had each controlled companies used as 'buffer companies' in the course of a multi-million pound 'missing trader' VAT frauds, and had made large profits, but had not themselves been centrally involved in the organisation of the frauds.

The court held that those who organised fraudulent activity on such a scale could and should expect sentences well into double figures; but the offenders in this case were not the organisers and the appropriate sentencing bracket in such cases was seven to eight years' imprisonment for those who had been involved for a long period. A sentence of three years was held to be appropriate for one who had been involved for a much shorter period (only one month) and had profited to a much smaller extent.

The court further held that disqualification orders should also be imposed where company directors have involved their companies in dishonest fraudulent activity of a significant sort.

B20 Offences Related to Drugs

B20.5 Meaning of 'Controlled Drug'

The Misuse of Drugs Act 1971 (Amendment) Order 2006 (SI 2006 No. 3331) amends parts 1 and 2 of sch. 2 to the Act with the effect of reclassifying methylamphetamine as a Class A drug with effect from 18 January 2007. It was previously a Class B drug.

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PART C ROAD TRAFFIC OFFENCES

C3 Offences Relating to Driving Punishable on Indictment

C3.13 Causing Death by Dangerous Driving: Sentence

The Cooksley guidelines on sentencing in cases of causing death by dangerous driving (or by careless driving when intoxicated) were reconsidered in Richardson and other appeals [2006] EWCA Crim 3186, in light of the increase in the maximum sentence now available in such cases. The court in Richardson also offered some guidance on the likely impact of the new offences of causing death by careless driving (Road Traffic Act 1988, s. 2B) or by driving when disqualified, uninsured or unlicensed (s. 3ZA), neither of which is yet in force.

One issue before the court was whether the increases in maximum sentences effected by the Criminal Justice Act 2003, s. 285, should lead to increased sentences generally, or whether such increases should be directed only 'at cases of the greatest culpability, which have caused the greatest harm'. On this issue, the court opined (at [14] and [16]):

The primary object of the increase in the maximum sentence was to address cases of the most serious gravity, so as to permit the sentence to be greater than before, [but] if the level of sentence in cases of the utmost gravity is significantly increased . . . there should be some corresponding increase in sentences immediately below this level of gravity, continuing down the scale to the cases where there are no aggravating features at all. In adopting this approach, we are following earlier guidance given by this court in Attorney General's References 14 and 24 of 1993, where the court addressed the doubling in the maximum sentence from five to ten years' imprisonment by significantly increasing the higher, but not the lower starting points.

At the lowest levels of seriousness, . . . the 2003 Act itself requires the sentencer only to impose a custodial sentence if such a sentence is necessary, and if it is, for the sentence to be no longer than necessary to fulfil the statutory purposes of sentencing laid down in s142. For these reasons, at these levels there will continue to be cases in which the broad guidance in Cooksley will remain appropriate and, we should add, exceptional situations where even shorter sentences, or non custodial sentences, may be appropriate.

As to causing death by careless driving when intoxicated, the court forcefully emphasised that that, 'in culpability terms this is and should be equated with causing death by dangerous driving', but noted (at [24] to [25] and [29]) what it regarded as a critical difference in culpability between those offences and the new 'death by [non-intoxicated] careless driving' offence:

The dangerous driver falls 'far below' what would be expected of a competent and careful driver to whom it would be obvious that the driving in question is dangerous. In summary, the standard of driving is very bad, and the driver himself should appreciate that it is. By contrast careless driving involves a failure to exercise the degree of care and attention required of drivers, and is an offence designed to address the daily cases which involve, '. . ..the kind of inattention or misjudgment to which the ordinarily careful motorist is occasionally subject without it necessarily involving any moral turpitude, although it causes inconvenience and annoyance to other users of the road' (per Lord Diplock in Lawrence [1982] AC 510 at 525).

Taken on its own, and wholly excluding any element of drink or drugs, careless driving is hugely less culpable than dangerous driving. And the true level of culpability of the driving should always . . . be taken into account when sentence is determined. This is elementary.

. . . Absent the consumption of alcohol, careless driving on its own almost always involves culpability at the lowest possible scale. In one sense, every driver is careless when he makes a mistake. Every driver, even the best, and most experienced, and normally careful, does so from time to time. . . . We therefore suggest that when the [new s 2B offence] comes into force, it will no longer be appropriate for the difference between dangerous and careless driving to be elided. Indeed it will shortly become critical to a fair and balanced sentencing process for the difference to be understood and acknowledged. . . . These issues, and indeed the various difficult issues arising from driving offences which result in death will shortly be the subject of a fresh public consultation by the Sentencing Advisory Panel. And this may produce further guidance from the Sentencing Guidelines Council.

There is clearly much good sense in these observations, but the distinction between careless and dangerous driving is, with respect, even less clear than the court would have us believe. The statutory definition of 'dangerous driving' is no less objective than the new statutory definition of careless driving, Recklessness, foresight of danger or wilful disregard for safety or legality are not required in either case. Convictions for causing death by dangerous driving have been upheld by the Court of Appeal on the basis of a momentary loss of concentration, or even of mere clumsiness, incompetence or panic (as for example in Topasna [2006] EWCA Crim 1969).

C6 Summary Traffic Offences

C6.44 Speeding

In Coombes v DPP [2006] EWHC 3263 (Admin), (2006) The Times, 29 December, a driver's conviction for speeding, contrary to the Road Traffic Regulation Act 1984, s. 89, was quashed by the Divisional Court (following an unsuccessful appeal to the Crown Court) because the road sign imposing the 30-mph limit in question was obscured by overgrown hedgerows, so that it became visible to motorists only at the point where it was passed.

Referring to the Road Traffic Regulation Act 1984, s. 85 (below), Walker J held that this imposed (at the least) a requirement that, at the geographical point where the motorist exceeded the limit, the signs could reasonably have been expected to have conveyed the limit to an approaching motorist in sufficient time for him to reduce from a previous lawful speed to a speed within the new limit. Motorists should not be convicted of speeding in the absence of adequate guidance

Section 85 (where relevant) provides:

1. For the purpose of securing that adequate guidance is given to drivers of motor vehicles as to whether any, and if so what, limit of speed is to be observed on any road, it shall be the duty of the Secretary of State, in the case of a road for which he is the traffic authority, to erect and maintain . . . traffic signs in such positions as may be requisite for that purpose.
2. In the case of any other road, it is the duty of the local traffic authority -
1. to erect and maintain . . . traffic signs in such positions as may be requisite in order to give effect to general or other directions given by the Secretary of State for the purpose mentioned in subsection (1) above, and
2. to alter or remove traffic signs as may be requisite in order to give effect to such directions, either in consequence of the making of an order by the Secretary of State or otherwise.
3. Where no such system of street or carriageway lighting as is mentioned in section 82(1) is provided on a road, but a limit of speed is to be observed on the road, a person shall not be convicted of driving a motor vehicle on the road at a speed exceeding the limit unless the limit is indicated by means of such traffic signs as are mentioned in subsection (1) or subsection (2) above.
4. In any proceedings for a contravention of section 81 of this Act, where the proceedings relate to driving on a road provided with such a system of street or carriageway lighting, evidence of the absence of traffic signs displayed in pursuance of this section to indicate that the road is not a restricted road for the purposes of that section shall be evidence that the road is a restricted road for those purposes.

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PART D PROCEDURE

D2 Courts, Judges and Parties

D2.75 Abuse of Process: Delay

Prosecutions for offences allegedly committed in the distant past raise particular evidential difficulties, and although convictions have been secured in a number of such cases, these sometimes give rise to serious concern. Uncorroborated allegations, particularly those dating from distant childhood, probably create the greatest difficulties (see for example Jenkins [1998] Crim LR 411, Chapman [2001] EWCA Crim 2226, and H, G (deceased) [2005] EWCA Crim 1828) but many 'care home abuse' cases, although often based on multiple accusations, have also given rise to concern. See the 2002 report of the Commons Home Affairs Committee.

The problems were considered once again in Robson and others [2006] EWCA Crim 2754, a case concerning the safety of convictions for physical abuse and child cruelty allegedly committed in a Norfolk care home over 25 years ago. The prosecution case depended upon evidence given by witnesses who were young at the time, and vulnerable. It was submitted that the trial judge ought to have stopped the trial, either at the close of the prosecution case, or at the close of the defence case, on the basis that no jury could safely have convicted on the evidence available, and that the convictions accordingly were unsafe. The court allowed some appeals, and dismissed the rest; but the following preliminary observations by Moses LJ (at [6] and [7]) appear to be of general application:

Cases concerning events so long ago naturally give rise to great concern. They require special consideration, not only as to whether they should be stayed on the grounds that a fair trial would be impossible but also, if they are not stayed, whether any verdicts based upon so distant a recollection are unsafe. As this court has repeatedly emphasised, the dangers inherent in such cases require the judge carefully to scrutinise the evidence himself in order to see whether it is safe to leave the case to the jury. (See in particular Smolinski [2004] EWCA Crim 1270 at paragraphs 9 and 13.) This scrutiny requires the judge to consider not only the nature and quality of the evidence but also inconsistencies, either within the evidence of one witness or between a number of witnesses. It is not sufficient for a judge merely to remark that inconsistencies are a matter for the jury. So they may be in many cases. But in cases where the complaints are of events many years ago, it is the responsibility of the judge to consider whether the inconsistencies are such that no jury, even when properly directed as to the significance of such inconsistencies, could safely convict.

The Lord Chief Justice in Smolinski advised that judges should scrutinise the evidence at the close of the case. But beyond emphasising the need for careful scrutiny, it is not possible to lay down clear principles according to which a judge should decide whether it is safe to leave a case to the jury or whether it is not. Indeed, it would be undesirable for any principle to be established. Any principle would be liable to provide far too rigid a process of determination. The issue must be left to the good judgment of the judge. His judgment will depend upon the type of case and the type of evidence. In some cases the only real issue will be whether any criminal offence took place (sexual offences against a member of the family are an obvious example). In other cases, even greater difficulty will be caused by the passage of time.

D6 Bail

D6.24 Risk of Absconding, Further Offences or Interference with Witnesses: Juveniles

The Criminal Justice Act 2003 (Commencement No. 14 and Transitional Provision) Order 2006 (SI 2006 No. 3217) brings into force, to a limited extent, inter alia ss. 14(2) and 15(2) of the Act on 1 January 2007. The provisions are in force for the purposes only of any offence to which para. 2A(2)(b), 6(2)(b), 9AA(1)(b) or 9AB(1)(b) of part 1 of sch. 1 to the Bail Act 1976 applies and in relation to which the defendant is liable on conviction to a sentence of imprisonment for life, detention during Her Majesty's pleasure or custody for life. The previous wording continues to apply in all other cases.

Section 14(2) inserts a new para. 9AA in part 1 of sch. 1 to the 1976 Act. This provides that, if a defendant is aged under 18 and it appears that he committed the offence whilst on bail in criminal proceedings, then in determining whether there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would commit an offence while on bail, the court shall give particular weight to the fact that the defendant was on bail in criminal proceedings when the offence under consideration was committed. The coming into force of s. 14 applies only where the offence for which the bail decision is being made was committed on or after 1 January 2007.

Section 15(2) inserts a new para. 9AB in the same schedule. This provides that if a defendant is under 18 years of age and it appears to the court that, having been released on bail in or in connection with the proceedings for the offence, he failed to surrender to custody, the court shall give particular weight to the fact that the defendant failed to surrender or, where there was a reasonable cause for his failure to attend, the fact that he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time. The coming into force of s. 15(2) applies only where the failure to surrender occurred on or after 1 January 2007.

D6.29 Risk of Absconding, Further Offences or Interference with Witnesses: Absconded in the Present Proceedings

The Criminal Justice Act 2003 (Commencement No. 14 and Transitional Provision) Order 2006 (SI 2006 No. 3217) brings into force, to a limited extent, inter alia s. 15(1) of the Act on 1 January 2007. The subsection is in force for the purposes only of any offence to which para. 2A(2)(b), 6(2)(b), 9AA(1)(b) or 9AB(1)(b) of part 1 of sch. 1 to the Bail Act 1976 applies and in relation to which the defendant is liable on conviction to a sentence of imprisonment for life, detention during Her Majesty's pleasure or custody for life. The previous wording continues to apply in all other cases. Section 15(1) substitutes a new para. 6 of part 1 of sch. 1 to the 1976 Act. This provides that, if a defendant is 18 years or over and it appears to the court that, having been released on bail in or in connection with the proceedings for the offence, he failed to surrender to custody, he may not be granted bail unless the court is satisfied that there is no significant risk that, if released on bail, he would fail to surrender to custody. The coming into force of s. 15(1) applies only where the failure to surrender occurred on or after 1 January 2007.

D6.31 No 'Right to Bail' for Certain Offences Committed on Bail

The Criminal Justice Act 2003 (Commencement No. 14 and Transitional Provision) Order 2006 (SI 2006 No. 3217) brings into force inter alia s. 14(1) of the Act on 1 January 2007. The provisions are in force for the purposes only of any offence to which para. 2A(2)(b), 6(2)(b), 9AA(1)(b) or 9AB(1)(b) of part 1 of sch. 1 to the Bail Act 1976 applies and in relation to which the defendant is liable on conviction to a sentence of imprisonment for life, detention during Her Majesty's pleasure or custody for life. The previous wording continues to apply in all other cases.

Section 14(1) substitutes a new para. 2A of part 1 of sch. 1 to the 1976 Act. This provides that, if a defendant is aged 18 or over and it appears that he committed the offence in question whilst on bail in criminal proceedings, he may not be granted bail unless the Court is satisfied that there is no significant risk of his committing an offence while on bail. The coming into force of s. 14 applies only where the offence for which the bail decision is being made was committed on or after 1 January 2007.

D6.98 Text of the Bail Act 1976

The Criminal Justice Act 2003 (Commencement No. 14 and Transitional Provision) Order 2006 (SI 2006 No. 3217) brings into force inter alia ss. 14 (offences committed while on bail) and 15(1) and (2) (failure to surrender by persons released on bail) of the Act on 1 January 2007. The provisions are in force for the purposes only of any offence to which para. 2A(2)(b), 6(2)(b), 9AA(1)(b) or 9AB(1)(b) of part 1 of sch. 1 to the Bail Act 1976 applies and in relation to which the defendant is liable on conviction to a sentence of imprisonment for life, detention during Her Majesty's pleasure or custody for life. The previous wording continues to apply in all other cases. Note also the transitional provisions in the Criminal Justice Act 2003 (Commencement No. 3 and Transitional Provisions) Order 2004 (SI 2004 No. 829) which continue to have partial effect on paras. 2 and 9 of sch. 1 to the 1976 Act.

D12 Juries

D12.51 Judge-only Trials on Indictment

The Domestic Violence and Victims Act 2004 (Commencement No. 7 and Transitional Provision) Order 2006 (SI 2006 No. 3423) brings into force, on 8 January 2007, ss. 17 to 20 of the Act (trial by jury of sample counts only). The coming into force of ss. 17 to 20 of the 2004 Act has no effect in relation to cases where one of the following events has occurred before 8 January 2007 -

1. the defendant has been committed for trial;
a notice of transfer has been given under the Criminal Justice Act 1987, s. 4 (serious or complex fraud) or the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988, art. 3;
2. a notice of transfer has been given under the Criminal Justice Act 1991, s. 53 (cases involving children) or the Children's Evidence (Northern Ireland) Order 1995, art. 4; or
3. the prosecution evidence has been served on the defendant in a case sent for trial under of the Crime and Disorder Act 1998, s. 51.

D18 Trial on Indictment: Sentencing Procedure

D18.3 Ascertaining the Facts of the Offence

The Court of Appeal has emphasised in Cain and other appeals [2006] EWCA Crim 3233 the duty of prosecution and defence advocates to assist the court or judge in ascertaining what sentences may lawfully be imposed in the case in which they are involved. A judge will very often not see the papers very long before the hearing and will not have the time for preparation that the advocates should enjoy. It is unacceptable for advocates not to ascertain and be prepared to assist the judge with the legal restrictions on the sentence that he can impose on the defendant. It is the duty of prosecuting counsel to ensure that the judge does not, though inadvertence, impose a sentence which is outside his powers. The court also emphasised the duty of a prosecution advocate to draw the court's attention to any relevant sentencing guidelines or guideline decisions of the Court of Appeal. The court concluded by warning that the only way of achieving an acceptable standard of practice may be to require prosecuting advocates to prepare a schedule or memorandum that identifies the matters relevant to sentence.

D24 Appeal to the Court of Appeal

D24.22 Prosecution Appeals: the Criminal Justice Act 2003

The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 7 and Transitional Provision) Order 2006 (SI 2006 No. 3423) brings into force, on 8 January 2007, s. 30 of the Act which amends the Criminal Justice Act 2003, s. 58 in relation to the applicable time for appeals to be made as a consequence of the implementation of the provisions of ss. 17 to 20 of the 2004 Act (trial by jury of sample counts only).

D24.43 Inconsistent Verdicts

Where a court or jury delivers two or more inconsistent verdicts in respect of the case before them, this may suggest that the decision-making process was in some way flawed and, although the Court of Appeal is notoriously slow to recognise contrasting verdicts as being logically inconsistent, a truly inconsistent set of verdicts (inexplicable on the evidence before the court) may require any relevant convictions to be quashed.

Different considerations apply to cases in which the verdict of one court or jury is inconsistent with that of another in a related case. As the Court of Appeal noted in Burke [2006] EWCA Crim 3122, inconsistency between verdicts at two different trials is not in itself any reason to hold a conviction unsafe (Andrews Weatherfoil Ltd (1972) 56 Cr App R 31). In Burke, therefore, B's conviction for laundering the proceeds of C's alleged tobacco smuggling was not rendered unsafe merely because C was later extradited from Spain and tried for, but acquitted of, that offence.

Whether B's conviction was now to be considered unsafe depended on whether evidence demonstrating this had emerged at C's trial. If so, it was necessary for B to place such evidence before the Court of Appeal. The court could not otherwise assume it would find such evidence credible. Jack LJ said:

The court is . . . being asked to allow the appeal on the ground of fresh evidence where there is no application before the court to receive the evidence, where the evidence in question . . . is not placed before the court, and where the witness is not available to give evidence to the court. The effect is that the court is asked to assume that the court would find the evidence . . . credible and that it would exculpate the appellant . . . We are being asked to allow the appeal without an opportunity to give proper consideration to the proposed new evidence. That is not a course which we should adopt.

D26 Reference to the Court of Appeal following Trial on Indictment

D26.1 Reference by the Criminal Cases Review Commission

In its exercise of the powers given to it by the Criminal Appeal Act 1995, s. 9, the Commission is under no obligation to have regard to, still less to implement, any practice of the Court of Appeal in relation to extension of time and granting of leave to appeal. Indeed, by s. 9(2), once a reference has been made by the Commission, the need for the leave of the court is removed: R (Director of Revenue and Customs Prosecutions) v Criminal Cases Review Commission [2006] EWHC 3064 (Admin).

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PART E SENTENCING

E1 Sentencing: General Provisions

Recent years have seen a huge increase in the complexity of sentencing law and a corresponding increase in the number of unlawful sentences imposed. The Court of Appeal has itself erred on at least one recent occasion (see R (A) v Governor of Huntercombe Young Offender Institution [2006] EWHC 2544 (Admin), which was noted in the update for November 2006).

No doubt the primary fault here lies with Parliament and with those who draft the outrageously complex laws in question, but until something is done to correct this, the courts and judges need help from the advocates who appear before them.

The Court of Appeal has accordingly emphasised in Cain and other appeals [2006] EWCA Crim 3233, the duty of prosecution and defence advocates to assist the court or judge in ascertaining what sentences may lawfully be imposed in the case in which they are involved. A judge will very often not see the papers very long before the hearing and will not have the time for preparation that the advocates should enjoy. It is unacceptable for advocates not to ascertain and be prepared to assist the judge with the legal restrictions on the sentence that he can impose on the defendant. It is the duty of prosecuting counsel to ensure that the judge does not, though inadvertence, impose a sentence which is outside his powers. The court also emphasised the duty of a prosecution advocate to draw the court's attention to any relevant sentencing guidelines or guideline decisions of the Court of Appeal (as to which duty see Blackstone's Criminal Practice 2007, E1.2).

The court concluded by warning that the only way of achieving an acceptable standard of practice may be to require prosecuting advocates to prepare a schedule or memorandum that identifies the matters relevant to sentence.

E2 Custodial Sentences: General Provisions

E2.8 Concurrent and Consecutive Sentences

In Williams [2006] EWCA Crim 3194, the Court of Appeal condemned the practice of imposing consecutive specified terms when imposing imprisonment for public protection. A single specified term must be imposed in such cases, having regard to all relevant factors.

E4 Mandatory Life Sentences

E4.1 Murder: Life Imprisonment

A burglar who kills in order to escape does so in the course of a burglary and any such murder is properly to be characterised as a murder for gain within the meaning of the Criminal Justice Act 2003, sch. 21, para. 5. A lack of intention to kill could constitute a mitigating factor, however. See Bouhaddaou [2006] EWCA Crim 3190.

E5 Custodial Sentences for Dangerous Offenders

E5.5 Imprisonment of Public Protection

In Williams [2006] EWCA Crim 3194, the Court of Appeal condemned the practice of imposing consecutive specified terms when imposing imprisonment for public protection. A single specified term must be imposed in such cases, having regard to all relevant factors.

It is wrong in principle for a judge, when considering whether to impose a sentence of imprisonment for public protection, to hear evidence of further allegations against the defendant that have not previously been pursued or proved by the prosecution. Nothing in the Criminal Justice Act 2003 undermines the basic principle that a defendant may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence. A defendant might otherwise be deprived of his right to trial by jury: Farrar [2006] EWCA Crim 3261.

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PART F EVIDENCE

F1 General Principles of Evidence in Criminal Cases

F1.10 Circumstantial Evidence

In Pinnock [2006] EWCA Crim 3119, the Court of Appeal offered this general observation as to the safety of convictions based upon circumstantial evidence. It accords very closely with the view expressed in Blackstone's Criminal Practice:

It is our experience that Appeals against conviction are all too often launched on the basis that where the Crown has little or no direct evidence upon which it can rely, but invites the court to draw inferences from circumstantial evidence, that this is in itself a good indicator of the weakness of the prosecution case. In our combined experience this is simply not the case. Circumstantial evidence can provide and often does provide a very strong case against an accused person. Provided the inferences the Crown invite the jury to draw from the circumstances are safe and proper inferences, then defence counsel will have a difficult job in persuading this court that a conviction secured upon them is unsafe.

F12 Character Evidence: Evidence of Bad Character of Accused

F12.20 Multiple Charges and Accusations at Common Law and under the Criminal Justice Act 2003, s. 101(1)(d)

The 'sea change' that has occurred in consequence of the Criminal Justice Act 2003 was noted in Chopra [2006] EWCA Crim 2133. The right way to deal with the new law was not, said the court, to begin by asking what would have been the position under the old. Whereas, under the old law, evidence of D's propensity to commit offences of the kind now alleged against him was prima facie inadmissible, such evidence is prima facie admissible under the Criminal Justice Act 2003.

Where, as in Chopra, the prosecution seek to establish D's propensity by calling evidence of complaints made by a number of complainants over a period of time, and none of these complaints has yet been proved, the truth or falsity of those complaints is a question which the jury must answer. The position may be different where propensity is advanced through proof of a previous conviction which may be incapable of contradiction. However, the 2003 Act governs all evidence of bad character, not only conclusive or undisputable evidence.

As was the case at common law, there has to be sufficient connection between the facts of the several allegations before they can establish a propensity to offend in the manner charged. But the answer to the question whether the evidence does so is not necessarily the same as it would have been at common law. The test now is the simple test of relevance under s. 101(1)(d), rather than the somewhat stricter test established at common law in cases such as DPP v P [1991] 2 AC 447.

Hughes LJ said (at [23] to [24]):

When considering admissibility the judge is required to assume that the evidence is truthful unless no jury could reasonably believe it - CJA 2003, section 109. Whether it is in fact truthful is for the jury. Secondly, propensity to commit an offence is still propensity to do so even if it be a common offence or one which can readily be imagined by someone bent on making a false allegation. Even before the passage of the 2003 Act, the suggestion which had at one time found favour . . . that similar fact evidence had to go beyond the so-called stock in trade of the sexual offender had been discredited - see DPP v P.

In saying what we have, we are not to be taken to hold that all evidence of other alleged offending is necessarily admissible under section 101(1)(d). That is very far from the case. As this court observed in Hanson . . ., there must in each case be an examination of whether the evidence really does tend to establish the relevant propensity. There will have to be sufficient similarity to make it more likely that each allegation is true. The likelihood or unlikelihood of innocent coincidence will, we are sure, continue to be a relevant and sometimes critical test. We do not, however, attempt here, any more than did this court in Hanson, to foresee the myriad of possible situations which may arise. By way of example we mention, as the court did in Hanson, that it may well be that one kind of assault will fail to be capable of establishing a propensity to commit a different kind of assault.

F12.24 Evidence going to Important Issue of Credibility between Defendant and Prosecution

Following Hanson [2005] EWCA Crim 824, it appears that a defendant's previous convictions will be considered relevant to that defendant's credibility only where, in the earlier case, either there was a plea of not guilty and he gave an account (on arrest, in interview or in evidence) which the jury must have disbelieved, or where the way in which the offence was committed shows a 'propensity for untruthfulness', e.g., by the making of false representations. This principle was applied in Lamb [2006] EWCA Crim 3347, in which the Court of Appeal reiterated that even previous convictions for dishonesty may not necessarily be considered evidence of a propensity for untruthfulness.

F12.26 Evidence of Misconduct Adduced by a Co-accused

In Stephenson [2006] EWCA Crim 2325 the Court of Appeal opined (obiter) that evidence of a defendant's previous convictions that would not be considered to demonstrate any 'propensity for untruthfulness' for the purposes of the Criminal Justice Act 2003, ss. 101(1)(d) and 103(1)(b) (evidence going to important issue of credibility between defendant and prosecution) might nevertheless be considered sufficiently relevant to an important issue of credibility arising between him and a co-defendant under s. 101(1)(e). Distinguishing Hanson [2005] EWCA Crim 824, in the context of the Criminal Justice Act 2003, s. 100, Hughes LJ said:

It does not follow [from Hanson] that previous convictions which do not involve either the making of false statements or the giving of false evidence, are incapable of having substantial probative value in relation to the credibility of a non defendant under [the CJA 2003] section 100, or for that matter of a co accused where the application is made by him under section 101(1)(e) . . . The same degree of caution which is applied to a Crown application when considering relevance and discretion does not fall to be applied when what is at stake is a defendant's right to deploy relevant material to defend himself against a criminal charge. Accordingly (though he cannot be blamed for it), the trial judge misdirected himself in directly applying paragraph 13 of Hanson to the situation which was before him. [emphasis added].

F12.33 Attack on Another Person's Character

The Criminal Justice Act 2003, ss. 101(1)(g) and 106(1)(c), were considered by the Court of Appeal in Nelson [2006] All ER (D) 290 (Dec).

N was charged with assault and affray. When interviewed by the police in connection with the incident in question, he suggested that his neighbour, who may have observed the incident but did not give evidence at trial, was a user of Class A drugs and had colluded with the complainant to fabricate the allegations against him. N did not persist in those allegations at trial, and the defence opposed any mention being made of them, on the ground that they were now irrelevant to the issues in the case. The prosecution, however, successfully applied for evidence of N's previous convictions for drug offences to be admitted, pursuant to s. 101(1)(g), on the ground that N had when interviewed made an attack on another person's character. N was convicted of affray. His appeal was dismissed, because imputations made by N against the complainant were sufficient to justify the revelation of N's criminal record, but the Court of Appeal did not consider that the attack on the neighbour could in itself have justified such a revelation.

The court's view was that evidence of a defendant's bad character ought not ordinarily to be admitted when the only basis for it is an attack on the character of a person who is neither a witness nor an alleged victim. The fairness of the proceedings would normally be damaged by the admission of bad character evidence in such circumstances. Furthermore, it was improper for the prosecution to adduce evidence (to which the defence objected) of otherwise-irrelevant comments made by N in interview (but not repeated by him at the trial) merely for the purpose of satisfying s. 101(1)(g). A trial judge should invoke his powers under the Police and Criminal Evidence Act 1984, s. 78, in order to prevent such abuses.

F14 Evidence of Bad Character of Persons other than Accused

F14.6 Threshold Conditions for Admissibility

In Hanson [2005] EWCA Crim 824, it was held that a defendant's previous convictions might be considered relevant to his credibility under the Criminal Justice Act 2003, ss. 101(1)(d) and 103(1)(b) (evidence going to important issue of credibility between defendant and prosecution) only where, in the earlier case, either there was a plea of not guilty and he gave an account (on arrest, in interview or in evidence) which the jury must have disbelieved, or where the way in which the offence was committed showed a 'propensity for untruthfulness', e.g., by the making of false representations.

The brief report of S [2006] All ER (D) 120 (Aug) in the All England Reporter or Digest is misleading, insofar as it suggests that a similar principle applies to the convictions or bad character of a prosecution witness. The full report of that case (sub nom Stephenson [2006] EWCA Crim 2325) shows that, whereas the trial judge had indeed assumed the same principle applied, the Court of Appeal disagreed. Hughes LJ said:

It does not follow . . . that previous convictions which do not involve either the making of false statements or the giving of false evidence, are incapable of having substantial probative value in relation to the credibility of a non defendant under [the CJA 2003] section 100, or for that matter of a co accused where the application is made by him under section 101(1)(e). It is, as we then explained, wholly rational that the same degree of caution which is applied to a Crown application when considering relevance and discretion does not fall to be applied when what is at stake is a defendant's right to deploy relevant material to defend himself against a criminal charge. Accordingly (though he cannot be blamed for it), the trial judge misdirected himself in directly applying paragraph 13 of Hanson to the situation which was before him.

F15 The Rule Against Hearsay

F15.11 Implied Statements as Hearsay

The Criminal Justice Act 2003, s. 115(3) provides that the rules in that Act governing the admissibility of hearsay evidence apply if (and only if) the purpose (or one of the purposes) of the person making the statement appears to the court to have been to cause another person to believe the matter, or to cause another person to act or a machine to operate on the basis that the matter is as stated.

This was intended to, and clearly does, rid us of the troublesome 'implied assertion' doctrine as seen in cases such as Wright v Doe d. Tatham (1837) 7 Ad & El 313 and Kearley [1992] 2 All ER 345: X does not 'impliedly state that he is cold' just because Y notices that X has put on an extra pullover; and Y does not assert that Z is a drug dealer just because he is heard to ask Z (or someone he believes to be Z) for his 'usual supply' of drugs. See for example Isechei [2006] EWCA Crim 1815.

But this also means that a plain and explicit statement found in a diary, when relied upon in court, can be classed as hearsay (and subject to the rules governing the admission or exclusion of hearsay) only if the diarist intended someone else to read and believe the passage in question. In N(K) [2006] EWCA Crim 3309, McCombe J said (at [16] and [21]):

To our mind it would be a very strange state of the law if a defendant could introduce a diary such as this on the basis that it is an inconsistent statement, but yet it remained outside the provisions made by Chapter 2 of the Act for the regulation of the admission of statements other than those made in court. Nevertheless, if that is the conclusion which the statute compels, we must give effect to it. In our judgement the fallacy in this argument is the underlying assumption that if the diary is not admissible hearsay, it cannot be admissible at all. The rule against hearsay is, was and always has been an exclusionary rule. That is to say, it operates to render inadmissible what would otherwise be relevant and thus admissible. The rationale has always been that assertions out of court may be false either because they are untruthful or because innocently inaccurate, and, unlike sworn testimony, those possibilities cannot be rectified by being tested in examination and cross-examination. . .

. . .If, as the appellant contends, the diary was never intended to be read by anyone, it was not hearsay because it did not fall within section 115. But that does not mean it is not admissible. On the contrary, if relevant it is admissible. It is real or direct evidence outside the hearsay rule. The statutory restrictions upon the admissibility of hearsay have no occasion to apply to an action by the complainant which never had as its purpose, principal or supplementary, that any other person should believe or act upon it. It is simply a fact from which the jury is entitled, but not bound, to infer that L's uncle had had intercourse with her. It is a fact from which that may, but not necessarily will, be inferred, in exactly the same way as if she had been observed by other people kissing him, for example, passionately or making a booking of a hotel room for an afternoon in his name.

The conclusion that the Criminal Justice Act 2003 does not restrict the admissibility of such evidence seems inescapable. But can such a diary entry really become 'real or direct evidence' of facts stated inside, merely because the maker did not expect anyone else to read it? If (for the sake of argument) Samuel Pepys kept his famous diary solely for his own reference, does this mean it would now be seen as direct, first-hand evidence of the Great Plague and Fire of London? Does its essential character change according to the purpose for which it was kept?

F16 Exceptions to the Rule Against Hearsay

F16.8 Unavailable Witness: Fear

The suggestion in H and others [2001] Crim LR 815, that a court should test oral testimony of fear through video link or recording was not followed by the Court of Appeal in Davies [2006] EWCA Crim 2643. The judge in this case had allowed evidence of three witnesses (alleged victims of the appellant's violence) to be read, pursuant to the Criminal Justice Act 2003, s. 116, because of their fear of the appellant. He acted on the basis of written statements by the witnesses to that effect.

The Court of Appeal rejected argument that more should have been done to ascertain the extent and basis of the fear. Moses LJ said (at [14] to [15]):

In our judgment, the judge was perfectly entitled to reach a conclusion as to the genuineness of the witnesses' fears on the basis of the evidence to which we have referred. It must always be recalled that fear is to be widely construed (see the CJA 2003, section 116(3)) and that it was the purpose of this part of the 2003 Act to alter that which had previously been the law under section 23 of the Criminal Justice Act 1988. The law previously referred to, particularly in H, is no longer that which should guide the courts under the new regime. Indeed, courts are ill-advised to seek to test the basis of fear by calling witnesses before them, since that may undermine the very thing that section 116 was designed to avoid.

Of course, judges must be astute not to skew a fair trial by a too ready acceptance of assertions of fear since it is all too easy for witnesses to avoid the inconvenience and anxiety of a trial by saying they do not want to come. But having said that, in the instant case there was ample evidence to justify the course that the judge took. In those circumstances, there is no basis for the suggestion that he was wrong to do so. Normally a judge will have a much better feel of the truth or otherwise of the assertions of fear than this court could ever do, but we accept that the judge made his ruling at the outset and in those circumstances based it purely upon the written assertions of the witnesses. Had we thought he was plainly wrong, then there would have been merit in this appeal, but, on the contrary, we take the view that he was right.

F18 Evidence of Identification

F18.19 The Turnbull Guidelines

Where a judge decides that the identification evidence in a given case is of such poor quality that he would not have left the case to the jury in the absence of supporting evidence, there is no obligation on him to warn the jury that they should not convict on the basis of the evidence of identification alone, should they reject the supporting evidence. There might however be some cases where, in the light of the evidence that has unfolded, a direction of that kind might be appropriate, but it is not required as a general rule: see Ley [2006] EWCA Crim 3063.

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NEW LEGISLATION

Al-Qaida and Taliban (United Nations Measures) Order 2006 (SI 2006 No. 2952)

This Order amends the Al-Qa'ida and Taliban (United Nations Measures) Order 2002 (SI 2002 No. 111), revokes the amendment to that Order (SI 2002 No. 251) and imposes a series of new restrictions, principally restrictions arising from Treasury order or designation, which affect any dealings aimed at supporting Usama bin Laden or other designated persons.

North Korea (United Nations Measures) Order 2006 (SI 2006 No. 2958)

This Order gives effect to UN Security Council Resolution 1718(2006). Under the Security Council Resolution, the Security Council or a committee of the Security Council can designate persons in respect of whom States are to take measures to impose financial restrictions. The measures include the freezing of funds, financial assets and economic resources of such persons and ensuring that any funds, financial assets and economic resources are not made available to them or for their benefit. The Security Council and the Committee can designate persons engaged in or providing support for North Korea's nuclear-related, other weapons of mass destruction-related and ballistic missile-related programmes, and persons acting on behalf of or at the direction of such persons. The Order empowers the Treasury to designate persons in line with the Security Council designations. Inter alia art. 6 prohibits any dealing with funds, financial assets and economic resources of designated persons. Article 7 prohibits making funds, financial assets or economic resources available to designated persons. Article 9 makes it a criminal offence to circumvent the prohibitions or to facilitate the commission of an offence relating to a prohibition. Article 10 provides a licensing procedure to enable, for humanitarian and other purposes, certain acts to be exempted from the prohibitions.

Criminal Justice Act 2003 (Commencement No. 14 and Transitional Provision) Order 2006 (SI 2006 No. 3217)

This Order brings into force ss. 14 (offences committed while on bail) and 15(1) and (2) (failure to surrender by persons on bail) and sch. 36, para 3 of the Act on 1 January 2007. Sections 14 and 15(1) and (2) are brought into force for the purposes only of any offence to which para. 2A(2)(b), 6(2)(b), 9AA(1)(b) or 9AB(1)(b) of part 1 of sch. 1 to the Bail Act 1976 applies and in relation to which the defendant is liable on conviction to a sentence of imprisonment for life, detention during Her Majesty's pleasure or custody for life. Further, s. 14 has effect only where the offence to which para. 2A(2)(b) or 9AA(1)(b) applies was committed after 1 January 2007 and s. 15(1) and (2) has effect only where the failure to surrender occurred on or after that date.

Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment No. 2) (England and Wales) Order 2006 (SI 2006 No. 3290)

This Order further amends the principal Order of 1975 (SI 1975 No. 1023) in relation to football stewards.

Misuse of Drugs Act 1971 (Amendment) Order 2006 (SI 2006 No. 3331)

This Order amends parts 1 and 2 of sch. 2 to the Act with the effect of reclassifying methylamphetamine as a Class A drug with effect from 18 January 2007. It was previously a Class B drug.

Domestic Violence and Victims Act 2004 (Commencement No. 7 and Transitional Provision) Order 2006 (SI 2006 No. 3423)

This Order brings into force, on 8 January 2007, the following provisions of the Act:

• ss. 17 to 21 (trial by jury of sample counts only)
• s. 30 (prosecution appeals - amendment of the Criminal Justice Act 2003, s. 58)
• s. 56 (grants for assisting victims, witnesses etc.)
• sch. 1 (modifications of ss. 17 to 20 for Northern Ireland)
• sch. 10, para. 62 (amends the Criminal Justice Act 2003, s. 74 so as to enable the Secretary of State to order modifications to the prosecution appeal procedures for the purpose of appeals under ss. 17 to 20 of the 2004 Act).

The coming into force of ss. 17 to 20 of the 2004 Act has no effect in relation to cases where one of the following events has occurred before 8 January 2007 -

1. the defendant has been committed for trial;
2. a notice of transfer has been given under the Criminal Justice Act 1987, s. 4 (serious or complex fraud) or the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988, art. 3;
3. a notice of transfer has been given under the Criminal Justice Act 1991, s. 53 (cases involving children) or the Children's Evidence (Northern Ireland) Order 1995, art. 4; or
4. the prosecution evidence has been served on the defendant in a case sent for trial under of the Crime and Disorder Act 1998, s. 51.

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