E23.7 Sexual Offences Prevention Orders

Sexual Prevention Orders under the Sexual Offences Act 2003 are invalid if made after proceedings had already been instituted under the Crime and Disorder Act 1998, s. 2. In such cases, the original provision remains applicable by virtue of the Interpretation Act 1978, s. 16: Bradshaw [2007] All ER (D) 90 (May).

F1 General Principles of Evidence

F1.9 Relevance

As to the evidential value of previous acquittals, note the decision of the Court of Appeal in Duckfield [2007] EWCA Crim 4 which is considered at F7.13 below.

F2 Exclusion of Evidence Obtained Unlawfully, Improperly or Unfairly

F2.18 Prosecutions Founded on Entrapment

Looseley [2001] 1 WLR 2060 was considered by the Court of Appeal in Jones [2007] EWCA Crim 1118. In this case the police became aware that someone was leaving graffiti messages on trains, seeking to entice children for sexual purposes. A journalist and later a police officer responded to the messages, a meeting was arranged and the appellant was arrested when he turned up at the meeting place. He was convicted inter alia of attempting to commit an offence under the Sexual Offences Act 2003, s. 8. Dismissing an appeal in which entrapment was alleged, the court ruled that the police had not instigated the offence. Thomas LJ said (at [23]):

It is clear, in our view, from the appellant's conduct in relation to the journalist, that he was looking for opportunities to incite a child to penetrative sexual activity; the incitement in those communications went beyond what was stated in the graffiti and included a specific incitement to penetrative sexual activity. The police officer's conduct in relation to the appellant followed on from those events. Far from instigating the offence, the police officer's conduct provided only the opportunity for the appellant to attempt to commit a similar offence and provide the evidence necessary for a conviction. The police officer's response to the invitation in the graffiti by pretending to be a child was a necessary pretence to that end; the pretence did not go beyond providing the necessary opportunity for the appellant to attempt to commit the offence by inciting a person whom he believed to be under the age of 13 to engage in penetrative sex. The police officer's replies thereafter to the text messages were entirely acceptable in a covert operation of this kind, as otherwise the nature of her actions would have increased the suspicions of the appellant. It was the appellant who, after he had been told of the person's age, continued and went on to incite penetrative sexual activity on more than one occasion on the days that followed.

F5 Corroboration

F5.5 Care Warnings

Makanjuola [1995] 1 WLR 1348 and Hunter [2002] EWCA (Crim) 2693 were considered in Dawes [2007] EWCA Crim 1165. This was a case in which a former accomplice (Barbsy) testifying for the Crown failed to implicate one of the appellants (Smith) in his earlier statements but implicated him extensively in his evidence before the jury. In the absence of Barbsy's testimony Smith would have had no case to answer on two of the counts on which he was convicted, but no warning was given as to whether Barbsy's evidence should be viewed with special caution.

Applying the principles identified in Makanjuola, the Court of Appeal quashed these convictions as unsafe. Scott Baker LJ said (at [78]):

We think the judge should have given a warning. As Lord Taylor . . . said in Makanjuola . . . where a witness has been shown to be unreliable the judge may consider it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints or to bear the defendant some grudge, a stronger warning may be thought appropriate. Of course, as Lord Taylor made clear each case depends on its own particular facts. In the present case Barbsy gave no viable explanation for why he did not implicate Smith in his earlier statements but implicated him extensively in his evidence. Bearing in mind that there was, absent Barbsy, no case against Smith on counts 1 and 2 we cannot be satisfied of the safety of his conviction on those counts and his appeal must be allowed.

F6 Examination in Chief

F6.14 Recent Complaints

Despite the changes made by the CJA 2003, s. 120, to the evidential status of recent complaint, evidence of that kind still cannot provide independent confirmation of a complainant's evidence since it does not come from a source independent of that complainant. A jury must be directed not only that recent complaint is evidence of the truth of what has been stated but that, in deciding on the weight to give such evidence, they must bear in mind that it is not capable of providing independent corroboration of the complainant's evidence. Failure to give such a direction (or worse, any suggestion that the complaint does provide such corroboration) may render a conviction unsafe. See A [2007] All ER (D) 143 (May).

F7 Cross-examination and Re-examination

F7.13 Protection of Complainants in Proceedings for Sexual Offences

and

F7.20 Finality of Answers to Questions on Collateral Matters

The right of the defence in a sex case to cross-examine a complainant as to allegedly false complaints made by her on other occasions (an issue which was only recently considered by the Court of Appeal in V [2006] EWCA Crim 1901) was considered once again in Duckfield [2007] EWCA Crim 4.

The court in V ruled that any cross-examination genuinely directed towards establishing that the complainant had made a previous false complaint about a sexual matter falls outside the Youth Justice and Criminal Evidence Act 1999, s. 41 as long as it relates to the alleged lies rather than to the sexual behaviour itself. The defence must however have a proper evidential basis for making such an assertion (following T; H [2002] 1 WLR 632). In Duckfield, D faced accusations of sexual abuse from several girls. All but one of these girls had previously made complaints of sexual abuse against other men; and in the case of his first accuser, S, those accusations (supported by her sister, L) had resulted in a trial in 1998, at which the jury had acquitted the man (A) she had accused.

D's counsel was permitted to ask each of the complainants (including S) whether they had made allegations of this kind before, but was not permitted to take the matter any further, this being a collateral issue and subject to the finality rule. He was not permitted to call A to testify as to falsity of the complaints made against him, and counsel decided not to ask any of the complainants whether their earlier complaints had been true, because he would have had to accept whatever answer they gave. D was acquitted on several counts, but convicted on five of the seven counts concerning the complaints made by S.

The Court of Appeal dismissed D's appeal against conviction. Having considered both the YJCEA 1999, s. 41 and the CJA 2003, s. 100, the court took the view that, "Allowing [D] to ask questions about the making of the previous complaint was in the circumstances, if anything, generous to [him]". It was possible, said the court (without deciding the point) that if A was allowed to testify, his evidence would have provided the 'proper evidential basis' required under T, H and V (whereas his acquittal, on its own, proved nothing of the kind); but the court was satisfied that the threshold of 'substantial probative value' was not met for the purposes of giving leave under the CJA 2003, s. 100. Toulson J said (at [24] to [25]):

[Counsel] wanted to cross-examine S and L, and to call A, effectively to retry the issue of A's guilt. We say that for this reason: the only way in which the jury in the present case could properly have decided whether the earlier complaint was well-founded would have been by having effectively a trial within a trial about matters which had occurred nearly nine years earlier. In our judgment, one only has to consider that to appreciate the unsatisfactory nature of the exercise.

To have embarked on the exercise of determining whether the earlier complaint was true, for the purpose of considering whether S and L may have been guilty of collusion in relation to the recent allegations, would have been a distracting and almost certainly unproductive exercise.

Such a procedure would not have been permitted at common law and s. 100 was not intended to change that position.

The ruling is Duckfield is not altogether surprising, but it is, with respect, disturbing. The Court of Appeal would it seems have been prepared to dismiss D's appeal even if he had not been allowed to raise the issue of previous unproven complaints at all. Now, it is perfectly correct to say that a previous acquittal proves nothing (see my earlier note on Deboussi [2007] EWCA Crim 684 (April 2007, F1.9) but as a juror I would be very concerned to discover that all but one of D's several accusers were in fact 'serial accusers', because that surely is a remarkable coincidence. The jurors in Duckfield were at least made aware of these earlier complaints, as a result of the trial judge's 'generosity'.

In the circumstances it seems strange that the jury managed to doubt the credibility of the various complainants (including S herself) on 12 of the 17 counts, and yet trust her sufficiently to feel sure of D's guilt in respect of the remaining five, but the Court of Appeal will rarely accept that such verdicts are in any sense inconsistent (see Blackstone's Criminal Practice, D24.43) so that argument is not one that can usefully be pursued.

F10 Opinion Evidence

F10.5 Expert Opinion Evidence - States of Mind

Henry [2006] 1 Cr App R 118 was applied in Pelham [2007] EWCA Crim 1321, in which it was held that expert evidence was inadmissible on the question whether D, who suffered from learning difficulties but had an IQ of 73 or above, could have possessed the mens rea for an offence of racially aggravated harassment. The Court of Appeal considered that the jury had been quite capable, without hearing expert evidence, of assessing D's mens rea or her ability to understand.

F12 Character Evidence: Evidence of Bad Character of Accused

F12.2 Bad Character

Tirnaveanu [2007] EWCA Crim 1239 provides welcome guidance as to the difference between evidence of bad character within the meaning of the CJA 2003, s. 98, and evidence of misconduct that 'has to do with the alleged facts of the offence with which the defendant is charged'.

D was convicted of a number of immigration offences relating to the making, of a false French identification card and several offences involving a Romanian immigrant called Monica Halarescu, including the forgery of a passport for her. He denied all responsibility for this and argued that some other person (the offender) had been impersonating him.

The police searched D's properties and discovered documents relating to other Romanians, whom the prosecution contended were illegal immigrants. The prosecution were permitted to call, in connection with those documents, evidence from the immigrants and evidence from immigration officers in relation to such immigrants. It was alleged that he had been acting as a lawyer and dealing with many such illegal immigrants.

It was contended on behalf of D that the judge was wrong to admit the evidence and, having admitted it, had failed to give proper directions to the jury.

On appeal, It was accepted that the evidence in question was evidence of misconduct, but the Crown argued that it was not subject to the bad character provisions of the 2003 Act because 'had to do with the alleged facts of the offence with which the defendant is charged'. See Machado [2006] EWCA Crim 1804, and McIntosh [2006] EWCA Crim 193. The court rejected this argument. Thomas LJ said:

It seems to us that the exclusion must be related to evidence where there is some nexus in time between the offence with which the defendant is charged and the evidence of misconduct which the prosecution seek to adduce.

On the other hand, if one of the gateways under s. 101 is satisfied and the evidence is admitted, (e.g. as important explanatory evidence or as evidence of disposition) it no longer matters whether that evidence might alternatively have been admissible without reference to those provisions. In this case, the additional evidence was clearly admissible under s. 101(1)(d), as it was relevant to an important matter in issue between D and the prosecution - namely whether it was he who had committed the offences and not some other person.

It is true that evidence which is admissible under s. 101(1)(d) is subject to possible exclusion under s. 101(3), whereas that would not be true of evidence which is exempt from the CJA provisions altogether; but any prosecution evidence, whether it falls under the CJA 2003 or not, is subject to the courts' residual discretion to exclude under the PACE 1984, s. 78(1): see Highton [2005] 1 WLR 3472 at [44].

F12.3 The 'Shield' under the Criminal Justice Act 2003

Cases in which a large proportion of a trial is taken up with the collateral issue of the previous behaviour of the defendant should be avoided if possible so that the issues in the trial do not become distorted. A trial judge must also endeavour to give the jury appropriate assistance in relation to such collateral issues: Sutton [2007] All ER (D) 254 (May).

F12.6 Notice

and

F12.25 Evidence of Misconduct or Disposition Adduced by a Co-accused

In Musone [2007] EWCA Crim 1237, the Court of Appeal confirmed that a judge ordinarily has no discretion to exclude evidence that satisfies the threshold for admissibility under the CJA 2003, s. 101(1)(e), but went on to consider possible sanctions for failure to give notice of intent to raise issues of bad character under that provision. The CrimPR 2005, r. 35.5 (which is not affected by amendments made under SI 2006 No. 353) requires that:

A co-defendant who wants to introduce evidence of a defendant's bad character or who wants to cross-examine a witness with a view to eliciting that evidence under section 101 of the Criminal Justice Act 2003 must give notice in the form set out in the Practice Direction to the court officer and all other parties to the proceedings not more than 14 days after the prosecutor has complied or purported to comply with section 3 of the Criminal Procedure and Investigations Act 1996.

In this case, the appellant had sought on the 10th day of a joint murder trial to adduce evidence that his co-accused, Chaudry, had admitted committing another murder of which he had been acquitted 12 years previously. The trial judge ruled that the evidence of this confession was of substantial probative value in relation to an important matter in issue between the appellant and Chaudry. If the jury accepted that Chaudry had confessed to committing that earlier murder then the judge was entitled to take the view that that was evidence which suggested that it was he who had committed the instant offence and not the appellant. It may also have suggested that Chaudry was someone who would lie in his own defence.

The Court concluded that a remedy had to be available in cases where an accused was guilty of a deliberate and prejudicial failure to comply with the requirements of the CrimPR. Moses LJ said:

59. In our view it is not possible to see how the overriding objective [in the Crim PR r. 1] can be achieved if a court has no power to prevent a deliberate manipulation of the rules by refusing to admit evidence which it is sought to adduce in deliberate breach of those rules.

60. We emphasise that cases in which a breach of the procedural rules will entitle a court to exclude evidence of substantial probative value will be rare. A court should be most reluctant to exclude evidence of that quality by reason of a breach of the procedural code. Nonetheless, there will be cases, of which the instant appeal is an example, where the only way in which the court can ensure fairness is by excluding evidence, even when it reaches the quality described in section 101(1)(e). It should be remembered that the court was compelled to assume the truth of the evidence that Chaudry confessed to murder. Section 109 gives rise to a stark choice between either an assumption that the evidence is true or rejection of its truth on the grounds that no court or jury could reasonably find it to be true. But in reality, as the judge himself remarked in his ruling, there will be evidence which, although capable of belief, is improbable and unlikely to be believed. Whilst the judge is compelled to assume the truth of such evidence for the purposes of section 101(1)(e), he need not take so extreme a view when considering whether to prevent the unfair effect of a breach of the procedural rules by excluding the evidence. The more credible the evidence, the less likely it is that the judge will exclude it on grounds of a breach of a procedural requirement. But where, as in the instant case, the evidence is improbable, the judge is entitled to take that factor into account in deciding whether to exclude it, in circumstances where the rules have been deliberately breached.

61. We acknowledge that one remedy which the judge ought to consider is whether to discharge the jury so as to give the co-defendant a proper opportunity of dealing with the new allegation advanced without any notice. But in many cases, and certainly in this appeal, to discharge the jury in such circumstances would be wrong. It would be unfair to the prosecution and might be a great unfairness to a co-defendant whose case might be faring rather better than that of the defendant seeking to adduce the surprise evidence at the last minute. Indeed, to discharge the jury at that stage may be to give the defendant manipulating the rules the very thing he is seeking to achieve.

62. We conclude that the requirements of a fair trial for all defendants, enshrined in Article 6, are met by the proper application of the 2005 Rules, contained within Part 35 and Part 1.

F12.12 Proof of Propensity

Hanson [2005] 2 Cr App R 21 was considered in McDonald [2007] EWCA Crim 1194, in which the Court of Appeal emphasised once again the importance of a clear and accurate direction as to the difference between evidence of propensity to commit an offence and evidence of a propensity to be untruthful. The trial judge in this case admitted evidence of D's previous convictions for offences of the same kind as those with which he was now charged. They were admitted as relevant only to a propensity to violence etc; but in summing up the judge suggested that the convictions were also relevant to D's credibility. Giving the judgment of the court, quashing D's convictions, David Clarke J said:

The judge expressly admitted these convictions for the purpose which we have indicated. He did not admit them as being relevant to any question of propensity to be untruthful; that is to say, he admitted them under section 103(1)(a), rather than 103(1)(b) of the Act. Nor, in our judgment, did they have any relevance to the issue of untruthfulness. They were offences of violence, including dishonesty in the case of the robbery conviction, but that is not the same as untruthfulness, as is apparent from the judgment of the Vice President in Hanson . . . The appellant had pleaded guilty to both and had not sought to deceive the court on either of those prior occasions.

This rule is now well established. It has however been held that in other contexts such convictions may indeed be put forward as relevant to credibility (notably in cases where a defendant seeks to discredit a witness or co-defendant who gives evidence against him). See for example Stephenson [2006] EWCA Crim 2325 (noted in the January 2007 update).

F14 Character Evidence: Evidence of Bad Character of Persons other than the Accused

F14.6 Threshold Conditions for Admissibility

Note in this context the decision of the Court of Appeal in Duckfield [2007] EWCA Crim 4, which is considered at F7.13 above.

F16 Exceptions to the Rule Against Hearsay

F16.14 Business and other Documents: Unavailability of Maker of Statement Prepared for Purposes of Criminal Investigation.

Hanson [2005] 1 WLR 3169 was considered and Humprhis [2005] EWCA Crim 2030 was distinguished in Wellington v DPP [2007] EWHC 1061 (Admin). This case provides further guidance as to the use of hearsay evidence in the form of printouts from the Police National Computer (PNC).

D charged with driving offences and with obstructing a constable in the execution of his duty. It was alleged that he was the driver of a car that had been stopped by officers. This driver had provided a false name ('Robert Vernon') and address, and then drove off while the officers were checking the details on the PNC. D was later identified and arrested by one of the officers concerned. As part of the case against him, the prosecution adduced a printout from the PNC which, in addition to his personal details, contained a list of aliases, including the name 'Robert Vernon'. He was convicted and appealed by way of case stated, contending (inter alia) that the requirements of the CJA 2003, s. 117(2)(b) and (c), had not been met and that the police officer who had originally entered the information on aliases into the PNC might well have recollection of that data, contrary to the requirements of s. 117(5)(b).

The appeal was dismissed. Jackson J said (at [31] to [32]):

Bearing in mind the Court of Appeal's reasoning and guidance in Hanson and Humphris, let me now return to the PNC print-out in the present case. It should be noted first of all that this is a standard print-out. It does not contain any additional details of the kind which featured in Humphris. The print-out contains Mr Wellington's name, address, date of birth and so forth. It then has the entry concerning aliases . . . In my judgment, the inescapable inference from this document is that the police officers who supplied the information 'had or may reasonably be supposed to have had personal knowledge of' the fact that Mr Wellington was using the alias Robert Vernon. There is no analogy between the PNC details which were wrongly admitted in Humphris and the PNC entry about aliases in the present case. I therefore reject the submission that the requirements of s. 117(2)(b) were not complied with. For essentially the same reasons, I reject the suggestion that the requirements of s. 117(2)(c) have not been complied with.

I turn next to s. 117(5)(b). [Counsel] urges that the relevant police officer could well have a recollection of the aliases, especially if he had only recently input such data into the system. In my judgment, this is the wrong approach to the sub-section. If pressed to its logical conclusion, this argument could lead to the exclusion of many relevant and uncontroversial details commonly found in a PNC print-out. The crucial fact is that alias names are not unusual. Police officers keep a record of alias names given by offenders as a matter of routine. Although it is possible that police officers will have a recollection of alias names given, these are not the kind of details of which police officers could reasonably be expected to retain a recollection. I am satisfied that in this case the requirements of section 117(5)(b) were met.

F16.17 Hearsay Admissible in the Interests of Justice

The CJA 2003, s. 114(1)(d) was relied upon to admit hearsay evidence on behalf of the prosecution in Meade [2007] EWCA Crim 1116.

F16.17 Hearsay Admissible in the Interests of Justice

Following its earlier ruling in Finch [2007] EWCA Crim 36 (see the February update) the Court of Appeal has now (in Finch [2007] All ER (D) 288 (May)) certified the following question of general public importance for possible consideration by the House of Lords:

Where two defendants, A and B, were jointly charged with an offence which it was alleged had been committed by both of them together, and A has pleaded guilty to it, do A and B remained 'charged in the same proceedings' for the purposes of s 76A of the Police and Criminal Evidence Act 1984, so that B may put in evidence the contents of A's confession to the police without calling him and notwithstanding that he would be a compellable witness?

Export Control (Iran) Order 2007 (SI 2007 No. 1526)

This Order imposes further restrictions on trade with Iran in accordance with an EC Regulation and UN Security Council Resolution.

Electronic Commerce Directive (Terrorism Act 2006) Regulations 2007 (SI 2007 No. 1550)

These Regulations provide for liability under ss. 1 to 4 of the Terrorism Act 2006 to extend to any act by a supplier of information society services which is established in the UK where the act takes place within the European Economic Area (outside the UK).

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