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Blackstone's Criminal Practice 2007

Updates

July 2007

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Blackstone's Criminal Practice 2007

July 2007

June Update 2007

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 July update primarily covers developments occurring or reported in June 2006.

Part A: General Principles of Criminal Law
Part B: Offences
Part D: Procedure
Part E: Sentencing
Part F: Evidence
Appendices
New Legislation

PART A GENERAL PRINCIPLES OF CRIMINAL LAW

A7 Human Rights

A7.28 Relevance of Strasbourg Jurisprudence

Given that a conviction need not necessarily be quashed merely because of a ruling in Strasbourg that there has been a breach of the ECHR, the Criminal Cases Review Commission are not automatically required to refer such cases to the Court of Appeal. Each case brought before the CCRC must be analysed in the light of the Criminal Appeal Act 1995, s. 13(1)(a). On that basis, the CCRC should refer a case to the court, only if there is a real possibility that the conviction, verdict, finding or sentence would not be upheld (R (Dowsett) v Criminal Cases Review Commission [2007] All ER (D) 63 (Jun)).

A7.29 Public Authorities

In R (Al-Skeini and others) v Secretary of State for Defence [2007] UKHL 26, the House of Lords held that the Human Rights Act 1998, s. 6, should be interpreted as applying not only to the conduct of a public authority within the UK but also when it acted within the jurisdiction of the UK for purposes of Article 1 of the Convention, but outside the UK itself. This means that the Convention rights of suspects detained by British forces in Iraq are protected and enforceable under the Human Rights Act 1998, and not merely under the Convention. Indeed, anyone held in custody abroad by British forces, will be protected by the Human Rights Act 1998. They have, in particular, a right to life, a right not to be tortured and a right of access to a fair trial.

In contrast, the legal obligations of British forces conducting operations against insurgents or suspected insurgents are more limited. In Al-Skeini, the House of Lords rejected applications brought under the Human Rights Act by families of civilians killed in shooting incidents involving British forces in Iraq on the grounds that the forces in question were not "in effective control" of the circumstances and not in a position to discharge obligations under UK human rights laws. They are however governed by various obligations under public international law, including Article 43 of the Hague Regulations which provide that an occupying power "shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." The families in question may also be able to pursue applications under the Convention in Strasbourg.

PART B OFFENCES

B14 Offences against the Administration of Justice

B14.99 Breach of Non-molestation or Restraining Orders

The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 9 and Transitional Provisions) Order 2007 (SI 2007 No. 1845) brings into force, on 1 July 2007, inter alia s. 1 of the Act and connected amendments and repeals. The commencement of s. 1 and associated provisions does not apply where a power of arrest under the Family Law Act 1996, s. 47 has been attached to a non-molestation order before 1 July 2007 unless that power of arrest no longer has effect.

B16 Revenue and Social Security Offences

B16.14 Social Security Frauds

King v Kerrier District Council [2006] EWHC 500 (Admin) was approved in Passmore [2007] All ER (D) 178 (Jun), in which it was held that D, who was in receipt of benefits, could not commit any offence under the Social Security Administration Act 1992, s. 111A(1A) (or s. 112(1A)), merely by failing to disclose that he had formed a registered company, because he had received no income from that company and accordingly it made no difference to the amount of benefit to which he was entitled. The formation of the company was not in itself a circumstance which he was required to disclose.

PART D PROCEDURE

D1 Police Powers

D1.155 Conditional Cautions

The Police and Justice Act 2006 (Commencement No. 3) Order 2007 (SI 2007 No. 1614) brings into force on 29 June 2007 inter alia s. 18 of the Act which inserts a new s. 24A into the Criminal Justice Act 2003. Section 24A provides for powers of arrest where there is a failure to comply with a conditional caution.

D5 Preliminary Proceedings in Magistrates' Courts

D5.3 Laying an Information

The Criminal Justice Act 2003 (Commencement No. 16) Order 2007 (SI 2007 No. 1999) brings into force, on 25 July 2007, ss. 29(1) to (3), (5) and (6) and 30, which relate to the new method of instituting proceedings by written charge and requisition. However, the provisions have effect only for the following purposes:

criminal proceedings instituted by a public prosecutor within the meaning of s 29(5)(a) (a police force, or a person authorised by a police force to institute criminal proceedings), in a magistrates' court sitting in one of the following locations:

Barking Magistrates' Court;
Bexley Magistrates' Court;
Brentford Magistrates' Court;
Bromley Magistrates' Court;
Coalville Magistrates' Court;
Croydon Magistrates' Court;
Harrow Magistrates' Court;
Hendon Magistrates' Court;
Knowsley Magistrates' Court;<
Loughborough Magistrates' Court;
Melton Magistrates' Court;
Oakham Magistrates' Court;
Redbridge Magistrates' Court;
Richmond Magistrates' Court;
St Helens Magistrates' Court;
Waltham Forest Magistrates' Court;
City of Westminster Magistrates' Court; and
Wimbledon Magistrates' Court; and

criminal proceedings instituted by a public prosecutor within the meaning of s 29(5)(e) (a person authorised by a Secretary of State to institute criminal proceedings), who is authorised for the purposes of s 49 of the Vehicle Excise and Registration Act 1994 (authorised persons), in a magistrates' court sitting in Portsmouth Magistrates' Court.

D5.7 The Decision to Issue a Summons

The Criminal Justice Act 2003 (Commencement No. 16) Order 2007 (SI 2007 No. 1999) brings into force (for limited purposes only) ss. 29(1) to (3), (5) and (6) and 30, which relate to the new method of instituting proceedings by written charge and requisition. See D5.3 for the limited nature of the implementation.

D11 Arraignment and Pleas

D11.2 Effect of Lack of Arraignment

Williams [1978] QB 373 was considered (along with Jones [2003] 1 AC 1 and O'Hare [2006] EWCA Crim 471 (as to which see Blackstone's Criminal Practice 2007, D13.35 et seq) in Kepple [2007] EWCA Crim 1339, in which it was held that where D absconds before arraignment it remains possible for the trial to proceed. By absenting himself, D may waive his right to arraignment just as he may waive his right to remain in court during the trial. Giving the judgment of the Court of Appeal, Thomas LJ said (at [17]):

In our view the issue in relation to the arraignment is one of waiver and is to be determined by precisely the same principles of waiver as are applicable in relation to proceedings in the absence of the [defendant]. These principles were discussed by the House of Lords in Jones; there is a helpful analysis of the speeches in [2002] Crim LR 554. In O'Hare, the position was summarised for the purposes of that decision as:
An analysis of the speeches in the House of Lords points to the conclusion that, if waiver is to be established, then knowledge of, or indifference to, the consequences of being tried in his absence and without legal representation would have to be proved.

D19 Summary Trial: General and Preliminary Matters

D19.2 Informations Generally

D22 Trial of Juveniles

D22.41 Constitution and Operation of the Youth Court

The Youth Courts (Constitution of Committees and Right to Preside) Rules 2007 (S.I. 2007 No. 1611), which came into force on 13 July 2007, replace the Youth Courts (Constitution) Rules 1954. Under r. 3 of the 2007 Rules, there has to be a committee, known as a 'youth panel', for each local justice area. The panel consists of the youth justices (i.e. the justices authorised to sit as members of a youth court) for the local justice area to which the youth panel relates. The function of the youth panel is to advise the Bench Training and Development Committee (or, for Inner London, the Inner London Youth Training and Development Committee) in relation to the number of justices required to sit and preside in youth courts in its local justice area and to liaise with other bodies to share information and represent the views of youth justices.

Rule 10(1) requires a youth court to consist of either (a) a District Judge (Magistrates' Courts) sitting alone, or (b) not more than three justices, including a man and a woman. Under r. 10(2) and (3), if no male justice or (as the case may be) no female justice is available due to circumstances that were unforeseen when the justices to sit were chosen, or if the only male (or female) justice present cannot properly sit as a member of the court, then the court may be constituted without a male (or female) justice if the other members of the youth court think it inexpedient in the interests of justice for there to be an adjournment. Under r. 11(1), a youth court (unless it consists of a District Judge sitting alone) must be chaired by a District Judge (if he is sitting as a member of the court) or by a youth justice who is on the list of approved youth court chairmen. Rule 11(2) provides that a youth justice may preside before he has been included on a list of approved youth court chairmen only if he is under the supervision of a youth justice who is on a list of approved chairmen and has completed the necessary training course. Rule 12 deals with the exceptional situation where no youth justice entitled to preside at the hearing is present. Rule 12(1) states that that the youth justices present may appoint one of their number to preside provided that they are satisfied as to the suitability of the justice they propose as chair and (unless the absence of a qualified chairman arises because of illness, circumstances unforeseen when the youth justices to sit were chosen or some other emergency) the justice in question has completed, or is undergoing, a chairman training course.

D26 Reference to the Court of Appeal following Trial on Indictment

D26.1 Reference by the Criminal Cases Review Commission

Given that a conviction need not necessarily be quashed merely because of a ruling in Strasbourg that there has been a breach of the ECHR, the Criminal Cases Review Commission are not automatically required to refer such cases to the Court of Appeal. Each case brought before the CCRC must be analysed in the light of the Criminal Appeal Act 1995, s. 13(1)(a). On that basis, the CCRC should refer a case to the court only if there is a real possibility that the conviction, verdict, finding or sentence would not be upheld: R (Dowsett) v Criminal Cases Review Commission [2007] All ER (D) 63 (Jun).

PART E SENTENCING

E1 General Provisions

E1.6 Reduction in Sentence for Guilty Plea

Following a review of its own guideline on reduction in sentence for a guilty plea, the Sentencing Guidelines Council has produced a revised guideline which has effect from 23 July 2007.

The main change relates to cases where the case against the offender is overwhelming. Previous guidance published in December 2004 guideline stated that in such cases sentences should be reduced by one-third in cases where offenders have indicated at the first reasonable opportunity that they will plead guilty. Whilst the presumption remains that a reduction should be made for a guilty plea at the earliest opportunity, the Council has concluded that a lower reduction of 20 per cent may be appropriate in certain circumstances. The Council has agreed with the recommendation of the Sentencing Advisory Panel that the general approach of the guideline is correct in setting out clearly the purpose of the reduction for a guilty plea, in settling for a reduction no greater than one third (with lower levels of reduction where a plea is entered other than at the first reasonable opportunity) and in continuing to provide for a special approach when fixing the minimum term for a life sentence imposed following conviction for murder.

The revised guideline provides guidance as to when the 'first reasonable opportunity' is likely to occur in relation to indictable only offences; emphasises that remorse and material assistance provided to prosecuting authorities are separate issues from those to which the guideline applies and makes clear that the approach to calculation of the reduction where an indeterminate sentence is imposed (other than that following conviction for murder) should be the same as that for determinate sentences.

E1.7 Reduction in Sentence for Assistance by Offender

The ambit of the Serious Organised Crime and Police Act 2005, ss. 73 and 74 were considered by the Court of Appeal in Z [2007] EWCA Crim 1473. The court in that case was required to decide whether the appellant's co-operation with the authorities after his conviction entitled him at common law to a greater reduction in sentence than had been made by the trial judge. Sentence had been passed prior to the commencement of the relevant SOCPA provisions, and the court observed:

31. These provisions create a new scheme which permits a court to give discounts for sentences to offenders who give information to the authorities or who offer to do so, but this agreement has to be in writing and must be made with a specified prosecutor. The provisions are noted in a comment on R v A by Dr David Thomas at [2006] Crim LR 1080. Dr Thomas poses the question of whether the new scheme has any effect on the conventional or "common law" practice and principles to which we have referred above. We asked counsel for their submissions on this point. Both counsel submitted that the new statutory provisions had no effect on the existing common law rules. Mr Burrows for the prosecution told us that there had been no attempt to use the new statutory procedure in relation to the appellant.

32. We do not need to decide this point for two reasons. First, it seems to us that the new statutory provisions cannot apply to a case, such as this, where both the offences and the sentence took place before the Act came into force on 1 April 2006. Secondly, as we read section 73(1) of the 2005 Act, the statutory regime will only apply following a plea of guilty by a defendant. In this case, the appellant was convicted in relation to the first Indictment, although he did plead guilty in relation to the other two. (We note in passing that section 74 only applies where a defendant has been sentenced in the Crown Court after he has entered into a written agreement to give assistance to the prosecutor. That section permits the prosecutor to refer the case back to the court by which sentence was passed in certain, specified, circumstances).

E5 Custodial Sentences for Dangerous Offenders

E5.1 Overview of Provisions

In S (RM) [2007] EWCA Crim 1622, the Court of Appeal has resolved a problem concerning ongoing offences committed over a period of time spanning 4 April 2005 (i.e. the date on which the 'dangerous offender' provisions of the Criminal Justice Act 2003 came into force) or offences committed at some unknown time within a period spanning that date.

The general rule is that an increase in the penalty for an offence cannot apply to things done before the new penalty comes into effect, and the court had no doubt that an order of imprisonment for public protection represents a more serious sentence than a determinate sentence (see Reynolds [2007] EWCA Crim 538).

The CJA 2003, s. 234, provides that "where an offence is found to have been committed over a period two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of s. 229 to have been committed on the last of those days".

This may seem at first glance to provide an answer, but s. 229 is concerned only with the assessment of dangerousness, where it falls to the court to assess "whether there is significant risk to members of the public of serious harm occasioned by the commission . . . of further [specified] offences." As Sir Igor Judge P points out in S (RM) at [5], s. 234 does not refer, and is not linked, to ss. 225 to 228, which are the provisions that really matter for this purpose. This appears to be a simple drafting error, but the general rule is that provisions of this kind must be strictly construed, and the Court of Appeal held that this rule was binding on them. Sir Igor Judge P said (at [11] and [12]):

11. . . . The end result, in our judgment, is that in cases where the count in the indictment spans the commencement date, the court should not impose any of the penalties created in sections 224 to 229 of the 2003 Act, unless satisfied that at least one relevant offence occurred after 4th April 2005. Once it is so satisfied, then the mere fact that the count was framed so that it spanned that date does not preclude such a sentence if it would otherwise be appropriate or mandated. We should perhaps add that, even if it is not open to the court to impose any of the dangerous offender penalties, because it is unsure whether the offence was committed before or after 4th April, if a qualifying offence or offences is committed after that date, then offences committed before the date may have some bearing on the assessment of dangerousness and, of course, on the determination of the minimum term. These offences do not cease to be relevant because the dangerous offender sentencing provisions do not apply directly to them.

12. We have two further comments: some care needs to be taken with the drafting of the appropriate counts in an indictment. Where it can realistically and sensibly be done, the indictments should be drafted to reflect the significance of 4th April 2005. Where it is difficult to produce an indictment in that form, then the judge, considering all the evidence, should make whatever findings are appropriate in the light of the evidence and give reasons for his conclusions, in particular, if in such a case the offence is found, on analysis of the evidence, to have taken place after 4th April.

E5.5 Imprisonment for Public Protection

The ruling in Farrar [2006] EWCA Crim 3261 (previously noted in the January update) was considered and explained by the Court of Appeal in Considine [2007] EWCA Crim 1166.

The question that arose in Considine was whether the assessment of "dangerousness" for the purposes of the Criminal Justice Act 2003, ss. 225 to 229 could legitimately include information as to other offending that the defendant had neither admitted nor been convicted of. The Court of Appeal gave an affirmative answer to that question.

Their lordships "entertained reservations" as to whether the full ambit of the principle in Canavan [1998] 1 All ER 42 (which was concerned with the process of establishing guilt) applies to the assessment of dangerousness for the purposes of s. 229. Under that provision a court or judge is entitled or in some cases required to take into account "any information about the offender which is before it." The court interpreted 'information' in this context as a broader concept than "evidence" in the strict legal sense. Accordingly, said Sir Igor Judge P (at [27]):

. . . relevant information bearing on the assessment of dangerousness may take the form of material adverse to the offender which is not substantiated or proved by criminal convictions.

Farrar was not authority for the proposition that the court must ignore information about criminal behaviour by the offender unless it has resulted in appropriate convictions:

What Farrar, consistently with Canavan, prohibits, is the introduction of a hybrid arrangement into the criminal justice system, in effect the possibility of conviction, or effective conviction, of a serious criminal offence after trial by judge alone in the course of a sentencing decision. The court was concerned that s. 229 should not be construed so as to allow the defendant to be deprived of his right to trial by jury or, in some way or other, be fixed with the consequences of guilt of a criminal offence without due process. A Newton hearing is not an acceptable form of trial for a criminal offence. It is after all a precondition to the Newton hearing that guilt of the offence is admitted by the defendant. It is therefore inappropriate to embark on a Newton hearing to decide whether or not the defendant has committed a discrete, but similar offence to those already before the court, solely for the purpose of making the assessment of dangerousness . . .

In our judgment what Farrar clearly did not decide is that, absent a conviction, the court making the section 229 decision is precluded from considering evidence of previous misconduct which would amount to a criminal offence. Arguments advanced on the basis that it did so decide are ill-founded.

In Considine, the trial judge was held to have been 'fully justified' in taking into account evidence of the defendant's long-term pattern of violent behaviour towards his former partner which had been put before the jury as evidence of his bad character under the Criminal Justice Act 2003, s. 101. The judge was not merely entitled, but required, to reflect on his own assessment of the defendant as he observed him throughout the trial.

PART F EVIDENCE

F6 Examination-in-chief

F6.22 Evidential Value of Previous Inconsistent Statement

In Coates [2007] EWCA Crim 1471 the Court-Martial Appeal Court considered the ambit of the Criminal Justice Act 2003, ss. 119 and 120, in the context of an extraordinary set of circumstances.

At a Naval court-martial, the appellant was convicted of raping the complainant, not on the basis of the evidence she gave against him at trial but on the basis of an earlier account, provided immediately after the alleged incident - an account which she then expressly rejected in the course of her testimony. An added complication was that the complainant had made two other statements in between her first and final versions, in which she appeared to have retained little recollection of the events. Before making the final statement, she had undergone therapy with a doctor of clinical psychology, who specialised in Eye Movement Desensitisation and Reprocessing (EMDR).

As Sir Igor Judge P observed at [27], the problem with these four statements "did not require any substantial analysis":

In the first statement, made on the night in question, the essential allegation is that after kissing for a while the couple had intercourse on the sick bay bed because in the end she gave up trying to say "no". The second and third statements suggest the absence of any memory of the circumstances in which intercourse took place. The fourth statement conveys that intercourse took place notwithstanding the complainant's continuous struggling. Both the first and fourth statements involve allegations of rape, but there are significant differences in the circumstances in which it allegedly occurred.

The court acknowledged that in some circumstances a rape conviction might properly be based on a pre-trial statement, rather than on oral testimony from the complainant. It might indeed be added that such statements may even be relied upon in some cases where the complainant appears to have retracted her story and has become a hostile witness (cf. Joyce [2005] EWCA Crim 1785). By s. 119:

If in criminal proceedings a person gives oral evidence and -
he admits making a previous inconsistent statement, . . . the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible.

But as Judge P explained (at [40] and [42]):

The present case is more problematic. The complainant was available to, and did give evidence. She effectively rejected her own first account of the incident. She advanced another, more serious scenario. In the final analysis the conviction was returned notwithstanding the Board's unsurprising rejection of the complainant's oral evidence. Two additional features should be highlighted. Her first statement would have left open the possibility of inebriated misunderstandings about the complainant's attitude to sexual activity with the appellant, whereas the fourth statement and her evidence excluded the possibility that intercourse took place on the basis of some such misunderstanding. The second is that in the context of the first account, the alcohol consumed by the complainant may have had a possible impact on whether or not she may have consented to intercourse, and subsequently regretted it, whereas on the account she actually gave, the alcohol had no effect at all. However much she had consumed, she struggled, as best she could in the limited space, throughout the incident. These differences are not immaterial, and their significance is undiminished by the Board's rejection of the appellant's assertion of her enthusiastic participation.

. . .

On a strict application of the language of [s. 119], the statutory conditions governing admissibility were fulfilled. However we emphasise that the overall discretion of the court under section 78 of the Police and Criminal Evidence Act 1984 in relation to the fairness of proceedings applies to evidence which falls within these statutory criteria. It is critical to the analysis that the complainant did not support any version of events which she had given before she saw Dr McGowan. Everything she said afterwards about the incident, whether in her statement or her testimony, was, as the judge found, 'unreliable', and should have been treated as such.

In the court's view, it was therefore wrong for the court-martial to convict the appellant unless satisfied of the truth of the complainant's oral testimony.

As to the dangers of relying upon recollection supposedly "restored" under therapy, see H and G (No 2) [2005] EWCA Crim 1828.

F7 Cross-examination and Re-examination

F7.8 Rules Governing Conduct of Cross-examination

The assertion in Blackstone's Criminal Practice 2007 that, "Counsel should not state what somebody else has said or is expected to say. The time for statements such as 'The defendant's recollection is . . . ' or 'The defendant will say . . . ' is the opening speech; such statements should not be made, or put in the form of a question, in cross examination . . . " was expressly endorsed by the Court of Appeal in Kepple [2007] EWCA Crim 1339. The appellant in this case absconded before arraignment and the trial proceeded in his absence, but the trial judge ruled that when his counsel was cross-examining prosecution witnesses in accordance with the appellant's earlier instructions, "his questions could not be put in any significant detail, because to do so would be to be putting his client's instructions, and those instructions counted for nothing in the absence of evidence".

Quashing the appellant's conviction, Thomas LJ said (at [27]):

In our judgment, counsel for the appellant was entitled to ask questions of witnesses for the prosecution in as much detail as he wished based on his instructions, but without indicating what the appellant's evidence might have been and in the knowledge that he would not be able to call evidence to contradict the answers given. He was entitled to conduct cross examination on this basis in the hope of either showing that his absent client's instructions were accepted by the witnesses or casting doubt upon the coherence or accuracy of their accounts. The ruling, however, had the potential effect of preventing counsel doing this. If it in fact did so, then it rendered counsel's presence at the trial largely nugatory and removed the valuable safeguard provided by that attendance to put the appellant's case based on his instructions. Although this was a case that in the circumstances could properly, as the judge had found, be tried in the absence of the appellant, the effect of the ruling could be thereby to deny the appellant the right to a fair trial which the common law afforded him and which was guaranteed by Article 6.

F12 Character Evidence: Evidence of Bad Character of Accused

F12.4 New Statutory Gateways

Campbell [2007] EWCA Crim 1472 is one of the most significant cases yet reported on the application of the bad character provisions of the Criminal Justice Act 2003 and on how the relevant principles should be explained to the jury. Unusually, it includes criticism effectively amounting to disapproval of some parts of the relevant Judicial Studies Board specimen directions.

The basic facts of the case in question were unremarkable. D appealed against his convictions for false imprisonment of a woman and for assaulting her, occasioning actual bodily harm. The jury were told that D had two previous convictions for offences of violence against women, each of which followed a guilty plea. The ground upon which permission was sought and given to adduce this evidence was that it showed a propensity to commit acts of violence towards women and was thus admissible pursuant to s. 101(1)(d) of the Act. This was explained to the jury, in accordance with the Judicial Studies Board's specimen directions, but the judge also directed them that they could take the convictions into account in deciding whether or not D's own evidence had been truthful. They were told that,

A person with a bad character may be less likely to tell the truth, but it does not follow that he is incapable of doing so. You must decide to what extent, if at all, his character helps you when judging his evidence.

On appeal, it was argued that two previous offences of violence, to which D had pleaded guilty, had no bearing on his propensity to tell the truth. The judge therefore should not have directed the jury that D's previous convictions might have any possible relevance to his credibility.

The appeal was dismissed, not because the Court of Appeal approved of the directions given, but because any defects in the summing up were not such as to have had any likely impact on the safety of the convictions.

The real importance of the case lies in the court's wider analysis of the law relating to directions on bad character, and indeed to the importance of specimen directions generally. Signalling a significant departure from some previous decisions of the court, Lord Phillips CJ warned (at [23]) that a trial judge's failure to provide a jury direction in accordance with a relevant specimen direction should no longer automatically be treated as a ground of appeal, let alone as a reason to allow an appeal. One should ask instead whether a jury would have reached the same conclusion by the application of common sense to the evidence, whether or not the specimen direction was given.

Pausing there, it would be useful to know how many of the specimen directions can be said to be non-essential or non-critical on the basis that they deal with matters of common sense that might instead be left to the jury. Directions as to the possible relevance of D's good character perhaps?

Lord Phillips continued:

24. The change in the law relating to character evidence introduced by the 2003 Act should be the occasion for simplifying the directions to juries in relation to such evidence. Decisions in this field before the relevant provisions of the 2003 Act came into force are unhelpful and should not be cited. Where evidence of bad character is introduced the jury should be given assistance as to its relevance that is tailored to the facts of the individual case. Relevance can normally be deduced by the application of common sense. The summing up that assists the jury with the relevance of bad character evidence will accord with common sense and assist them to avoid prejudice that is at odds with this.

25. We reject [counsel's] submission that the jury can only use evidence of bad character for a particular purpose if it could have been introduced through the relevant gateway. Once the evidence has been admitted through a gateway it is open to the jury to attach significance to it in any respect in which it is relevant. To direct them only to have regard to it for some purposes and to disregard its relevance in other respects would be to revert to the unsatisfactory practices that prevailed under the old law.

His lordship later made some common-sense observations that are nevertheless radical in their rejection of orthodox doctrine:

28. In considering the inference to be drawn from bad character the courts have in the past drawn a distinction between propensity to offend and credibility. This distinction is usually unrealistic. If the jury learn that a defendant has shown a propensity to commit criminal acts they may well at one and the same time conclude that it is more likely that he is guilty and that he is less likely to be telling the truth when he says that he is not.

. . .

30. The question of whether a defendant has a propensity for being untruthful will not normally be capable of being described as an important matter in issue between the defendant and the prosecution. A propensity for untruthfulness will not, of itself, go very far to establishing the committal of criminal offence. To suggest that a propensity for untruthfulness makes it more likely that a defendant has lied to the jury is not likely to help them. If they apply common sense they will conclude that a defendant who has committed a criminal offence may well be prepared to lie about it, even if he has not shown a propensity for lying whereas a defendant who has not committed the offence charged will be likely to tell the truth, even if he has shown a propensity for telling lies. In short, whether or not a defendant is telling the truth to the jury is likely to depend simply on whether or not he committed the offence charged. The jury should focus on the latter question rather than on whether or not he has a propensity for telling lies.

31. For these reasons, the only circumstance in which there is likely to be an important issue as to whether a defendant has a propensity to tell lies is where telling lies is an element of the offence charged. Even then, the propensity to tell lies is only likely to be significant if the lying is in the context of committing criminal offences, in which case the evidence is likely to be admissible under section 103(1)(a).

Finally, Lord Phillips criticised the form of the then current specimen directions on evidence of a defendant's bad character:

37. We would make the following observations about these specimen directions. They direct the judge to identify the gateway or gateways through which the bad character has been admitted by reference to the wording of the Act. We question the desirability of this. It is right that in Edwards the Vice-President said that 'it should be explained why the jury has heard the evidence' but we think that reciting to the jury the statutory wording in relation to the relevant gateway is likely to be unhelpful. It cannot assist the jury to be told "this evidence has been admitted because it may help you to resolve an issue between the defendant and the prosecution, namely whether the defendant has a propensity to commit offences of the kind with which he is charge". Nor is that part of the specimen direction that relates to gateway (f) likely to assist the jury.

38. If the jury is told in simple language and with reference, where appropriate, to the particular facts of the case, why the bad character evidence may be relevant, this will necessarily encompass the gateway by which the evidence was admitted.

39. In the rare case where evidence of bad character has been admitted because the question of whether the defendant has a propensity to be untruthful is an important matter in issue between the defendant and the prosecution, the direction should always explain the relevance of the evidence with reference to the particular facts which make that matter important. 40. Where evidence of a criminal or otherwise blameworthy act on the part of the defendant is adduced because it bears on a particular issue of fact and this evidence has no bearing on the defendant's propensity to commit the offence charged, this should be made plain to the jury.

41. In general we do not consider it helpful to include this passage of the specimen direction:
You may also use the evidence of the defendant's bad character in the following ways: If you think it right, you may take it into account when deciding whether or not the defendant's evidence to you was truthful. A person with a bad character may be less likely to tell the truth, but it does not follow that he is incapable of doing so
The reason why this is of little assistance is not because it is not accurate but because a defendant's lack of regard for truthfulness is, of itself, normally of limited assistance when deciding whether in the instant case he is telling the truth, as we have explained earlier.

42. We also question whether it is helpful to tell the jury that they can, if they think it right 'take the evidence into account when deciding whether or not the defendant committed the offences with which he is charged'. The only reason that the jury have heard the evidence is that it may assist them in deciding that question and they hardly need to be told this in those terms.

43. It is, of course, clearly highly desirable that the jury should be warned against attaching too much weight to bad character evidence let alone concluding that the defendant is guilty simply because of his bad character.

F16 Exceptions to the Rule Against Hearsay

F16.48 Criminal Justice Act 2003: Multiple Hearsay

Maher v DPP [2006] EWHC 1271 (Admin) (noted in the June 2006 update) and the Criminal Justice Act 2003, ss. 114(1)(d) and 121(1)(c), were considered by the Court of Appeal in Walker [2007] EWCA Crim 1698.

This case concerned testimony given by a witness (B) as to a potentially incriminating statement made by one of the defendants (C) in which C had mentioned something said to him by the appellant (W). B testified that C handed him a gun (allegedly the weapon used to commit a murder a few minutes earlier) and said "Your cousin (W) said hold this and he'll collect it in the morning."

There was no dispute that C's account of what W had said to him was hearsay within the meaning of the CJA 2003, s. 115. W's statement to C was not made in oral evidence and W's purpose, if he made the statement, was to cause C to act on the basis of the information provided. Similarly, C's purpose in telling B what W had said to him was to cause B to take the bag and temporarily look after it for him. It was accordingly a case of double hearsay within the meaning of s. 121.

Admissibility of B's 'double hearsay' evidence depended on the CJA 2003, s. 114 (in particular, s. 114(1)(d) and (2)) and s. 121. The statements in question must be admissible both independently and cumulatively. Section 121 does not provide an alternative to the establishment of admissibility under ss. 114, 116, etc, but instead provides an additional test to be satisfied. The trial judge, however, "jumped straight to s. 121". Moreover, although he considered B's reliability:

he never addressed the issues of the reliability of C and W as makers of the statements, the reliability of the evidence of the making of the statement by W to C and the reliability of the statement themselves.

The Court of Appeal did not think that these errors undermined the safety of the conviction. Had the judge asked himself the right questions he would have found that the evidence (whether or not it was also admissible as confession evidence) satisfied the test laid down in s. 114(1)(d); and although s. 121 "imposes a higher threshold . . . than s. 114", a judge, having concluded that the statements were admissible under s. 114 (1)(d) (read in conjunction with s. 114(2)(e) and (f)) would not be likely to exclude them as unreliable for the purposes of s. 121.

F19 Inferences from Silence or Non-disclosure

F19.14 Failure to Testify

The importance attached to the trial judge's duty to provide an appropriate direction to the jury in cases involving a failure to testify is illustrated by Paton [2007] EWCA Crim 1572. D was charged with kidnapping, false imprisonment and possession of an imitation firearm with intent to commit an indictable offence. The case against him was 'unarguably strong' but circumstantial, and depended in particular on the finding of incriminating items in his car.

At the trial, the Recorder asked D's counsel, in front of the jury, whether he had warned D that the jury might draw such inferences as were proper from a failure to give evidence. Counsel replied that he had, but although D then failed to give evidence, and although prosecuting counsel made (in his own words) 'quite a meal' of that failure in his closing speech, the recorder's only reference to it was when summing up was this:

As you know, the defendant was interviewed on that date and, indeed, subsequently on three other occasions. You have got the transcripts of the evidence that he gave. I am going to remind you about his evidence tomorrow morning because it is right that, because the defendant himself has not given evidence, the only account you have from him to explain his whereabouts and what he was doing and how he came to be in possession of the items that were found when his car was searched, that evidence is contained within the interview notes.

When the jury had retired, the Recorder told prosecuting counsel that he had made a conscious decision not to say more. He may have thought that this was a kindness, in that the standard direction would have been more damaging to D's case, but the Court of Appeal disagreed and ordered a retrial. Toulson LJ said (at [32]):

If the Recorder had made a positive decision that this was not an appropriate case in which adverse inferences could or should be drawn, it was his duty so to direct the jury. If he took the view that, on the contrary, the jury should be entitled in accordance with the terms of the statute to draw adverse inferences, then it was incumbent on him to give the appropriate direction. What he could not properly do was simply to leave the matter in the air. That left it for the jury to make up their own minds what inferences they could draw without any of the guidance which comes with the standard form of direction. This was, we stress, not the fault of prosecution counsel, who drew the Recorder's attention to it, but it was a serious omission.

Appendices

Appendix 9 Sentencing Guidelines Council Guidelines

Following a review of its own guideline on reduction in sentence for a guilty plea, the Sentencing Guidelines Council has produced a revised guideline which has effect from 23 July 2007.

NEW LEGISLATION

Youth Courts (Constitution of Committees and Right to Preside) Rules 2007 (S.I. 2007 No. 1611)

These Rules, which came into force on 13 July 2007, replace the Youth Courts (Constitution) Rules 1954 and make new provision for the constitution and chairmanship of youth courts.

Police and Justice Act 2006 (Commencement No. 3) Order 2007 (SI 2007 No. 1614)

This Order brings provisions of the Act into force on 29 June 2007 and 1 August 2007.

The following provisions came into force on 29 June 2007:

s. 2 (amendments to the Police Act 1996) insofar as it relates to sch. 2, paras. 7 (1) and (2) (functions of police authorities);
s. 3 (delegation of police authority functions);
s. 13 (supply of information to police etc. by Registrar General);
s 18 (arrest for failing to comply with conditional caution);
ss. 23 to 25 (parenting contracts and parenting orders);
s. 41 (immigration and asylum enforcement function: complaints and misconduct);
s. 52 (amendments and repeals) insofar as it relates to sch. 14, paras. 53 to 58 and the entry relating to the Criminal Justice Act 2003 in part 2 of sch. 15.

The following provisions are brought into force on 1 August 2007:

s. 22 and sch. 9 (amendments to the Crime and Disorder Act 1998);
s. 52 (amendments and repeals) insofar as it relates to the repeals in part 3 of sch. 15 relating to the Crime and Disorder Act 1998, the Police Reform Act 2002 and the Clean Neighbourhoods and Environment Act 2005.

Criminal Justice Act 2003 (Reviews of Sentencing) (Consequential and Supplementary Provisions) Order 2007 (SI 2007 No. 1762)

This Order modifies the Criminal Justice Act 1988, s. 36 in relation to certain transitional cases arising under the Criminal Justice Act 2003. The provision made by the Order is consequential on para. 6 of sch. 22 to the 2003 Act and supplementary to the provision made by sch. 22, para. 15.

Domestic Violence, Crime and Victims Act 2004 (Commencement No. 9 and Transitional Provisions) Order 2007 (SI 2007 No. 1845)

This Order brings into force, on 1 July 2007, ss. 1 (breach of non-molestation order to be a criminal offence) and 4 (extension of part 4 of the Family Law Act 1996 to non-cohabiting couples) of the Act and connected amendments and repeals. The commencement of s. 1 and associated provisions does not apply where a power of arrest under the Family Law Act 1996, s. 47 has been attached to a non-molestation order before 1 July 2007 unless that power of arrest no longer has effect.

Criminal Justice Act 2003 (Commencement No. 16) Order 2007 (SI 2007 No. 1999)

This Order brings into force, on 25 July 2007, ss. 29(1) to (3), (5) and (6) and 30, which relate to the new method of instituting proceedings by written charge and requisition. However, the provisions have effect only for the following purposes:

criminal proceedings instituted by a public prosecutor within the meaning of s 29(5)(a) (a police force, or a person authorised by a police force to institute criminal proceedings), in a magistrates' court sitting in one of the following locations:

Barking Magistrates' Court;
Bexley Magistrates' Court;
Brentford Magistrates' Court;
Bromley Magistrates' Court;
Coalville Magistrates' Court;
Croydon Magistrates' Court;
Harrow Magistrates' Court;
Hendon Magistrates' Court;
Knowsley Magistrates' Court;
Loughborough Magistrates' Court;
Melton Magistrates' Court;
Oakham Magistrates' Court;
Redbridge Magistrates' Court;
Richmond Magistrates' Court;
St Helens Magistrates' Court;
Waltham Forest Magistrates' Court;
City of Westminster Magistrates' Court; and
Wimbledon Magistrates' Court; and

criminal proceedings instituted by a public prosecutor within the meaning of s 29(5)(e) (a person authorised by a Secretary of State to institute criminal proceedings), who is authorised for the purposes of s 49 of the Vehicle Excise and Registration Act 1994 (authorised persons), in a magistrates' court sitting in Portsmouth Magistrates' Court.

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