Companion Website

Blackstone's Criminal Practice 2007

March 2007

March 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 March update primarily covers developments occurring or reported in February 2006.

---

• Part A: General Principles of Criminal Law
• Part B: Offences
• Part C: Road Traffic Offences
• Part D: Procedure
• Part E: Sentencing
• Part F: Evidence
• New Legislation

---

PART A GENERAL PRINCIPLES OF CRIMINAL LAW

A3 General Defences

A3.10 Intoxication: Specific and Basic Intent

In Heard [2007] EWCA Crim 125, the Court of Appeal has reconsidered, obiter, the problematic distinction between basic and specific intent. On that issue, DPP v Majewski [1977] AC 443 remains open to various interpretations, one of which defines a crime of basic intent as one that does not require proof of intent at all. If recklessness, negligence or maliciousness suffices, and intent or knowledge need not be established, then the crime is one of basic intent. But if intent or knowledge must be proved in respect of any element(s) of the crime, it is (in respect of that element) a crime of specific intent, even if it remains a crime of basic intent in respect of other elements that do not require intent.

This interpretation gains weighty support from Lord Diplock's speech in Caldwell and this support is not necessarily invalidated by the subsequent demise of 'Caldwell recklessness'. It also has the merit of simplicity.

In Heard, however, the court prefers a more complex and elusive test derived, via Lord Simon's speech in Majewski, from Fauteux J's judgment in George (1960) 128 Can CC 289, according to which:

Crimes of specific intent are those where the offence requires proof of purpose or consequence, which are not confined to, but amongst which are included, those where the purpose goes beyond the actus reus (sometimes referred to as cases of ulterior intent) . . .

In considering the question of mens rea, a distinction is to be made between (i) intention as applied to acts considered in relation to their purposes and (ii) intention as applied to acts apart from their purposes. A general intent attending the commission of an act is, in some cases, the only intent required to constitute the crime while, in others, there must be, in addition to that general intent, a specific intent attending the purpose for the commission of the act.

It may, with respect, be far from easy to draw distinctions of this kind. Murder does not necessarily require any purposive intent, but is known to be a crime of specific intent, whereas rape, that clearly does require purpose, is said in Heard to remain a crime of basic intent. The court meanwhile suggests that arson or criminal damage under the Criminal Damage Act 1971, s. 1(2), is a crime of specific intent, even if D is accused only of reckless damage coupled with recklessness as to the possible endangerment of life.

The court does however recognise that an offence may require basic intent as to one element but specific intent as to another. In a case of criminal damage, inability to appreciate the danger posed by an act of vandalism might therefore save D from conviction under s. 1(2), although voluntary intoxication cannot save him from conviction under s. 1(1).

This is not the only controversial aspect of the judgment in Heard. Although it is well established that voluntary intoxication cannot ordinarily support a denial of mens rea (or a defence of automatism) in respect of a crime of basic intent, the court draws a distinction between drunken confusion (where D does not appreciate the true nature of his actions) and a drunken accident, in which there may be no intent (or recklessness?) of any kind. Mere accidents are said to fall outside the scope of the Majewski principle.

This however is also problematic, because an accident may itself result from an earlier deliberate act. In Brady [2006] EWCA Crim 2413, D, who had spent the evening drinking at a nightclub, hoisted himself up onto the railings of a gallery overlooking the dance-floor. He then fell onto V causing her serious injury. On a charge of maliciously inflicting grievous bodily harm (a crime of basic intent) the Court of Appeal opined (obiter) at [25]:

It may have been open to the jury in this case to convict [D] on the basis of his own account. We say that for this reason: arguably, there was here evidence of 'deliberate non-accidental conduct on the part of the accused that inflicted grievous bodily harm' in that [D] deliberately perched, precariously as it turned out, on a low railing, above a crowded dance floor and having consumed considerable quantities of alcohol and drugs. This deliberate act, on any view, led almost immediately and directly to the fall over the railing and to the infliction of grievous bodily harm. It was a substantial cause of the infliction of those injuries.

A5 Parties to Offences

A5.5 Scope of the Joint Venture

The authorities on joint enterprise, including Powell, English [1999] 1 AC 1, were reviewed by the Court of Appeal in Rahman [2007] EWCA Crim 342. The court noted the difficulties that may arise where one person in a group or gang of attackers has struck a fatal blow, and where although the defendants may each be identified as members of that gang or group, none can be identified as the actual perpetrator. A defendant who agreed to the killing or who knew what the perpetrator was likely to do may still be guilty of murder, even if he did not personally intend or desire the killing, but one who did not foresee what would or might happen cannot be guilty even of manslaughter. Even where a given defendant personally intended or foresaw that serious injury would be inflicted, he will not be guilty of murder if another attacker killed by means of a fundamentally different and more deadly act (as where the gun which was supposed to be used to 'kneecap' the victim is used instead to blow out his brains).

It was argued on behalf of the appellant in Rahman that even where the defendants all anticipated the possible use of (say) a knife to stab the deceased in the chest and inflict serious injury, they could not on that basis be guilty of murder if the killer or knifeman stabbed as expected, but with an intent to kill that was not foreseen by the others. Stabbing with intent to kill would on that argument be a fundamentally different act from stabbing with intent only to cause serious injury.

The court rejected the argument before going on to suggest 'albeit with trepidation', a 'concise route to verdict' in a case of this kind, avoiding any directions which are too favourable to the defendants. Hooper LJ said (at [68] to [70]):

We assume an attack by a group of armed people on a person (V) who is killed during the attack. It is the prosecution's case that the defendants were parties to that murder. The prosecution accept that none of the defendants on trial can be shown to have caused the death of V and there is no dispute that a distinct member of the group whom we shall call P caused the death. The prosecution's case is that all of the defendants participated in the attack intending (at the least) that really serious harm would be caused to V.

In order to convict D of murder the jury must first be sure that P unlawfully caused the death of V intending to kill him or cause him really serious bodily harm and secondly be sure that D played some part in the attack on V. The route to verdict could then be:

1. Are you sure that D intended that one of the attackers would kill V intending to kill him or that D realised that one of the attackers might kill V with intent to kill him? If yes, guilty of murder. If no, go to 2.
2. Are you sure that either:
   1. D realised that one of the attackers might kill V with intent to cause him really serious bodily harm; or
   2. D intended that serious really bodily harm would be caused to V; or
   3. D realised that one of the attackers might cause serious bodily harm to V intending to cause him such harm?
   If no, not guilty of murder. If yes, go to question 3.
3. What was P's act which caused the death of V? (e.g. stabbing, shooting, kicking, beating). Go to question 4.
4. Did D realise that one of the attackers might do this act? If yes, guilty of murder. If no, go to the question 5.
5. What act or acts are you sure D realised that one of the attackers might do to cause V really serious harm? Go to question 6.
6. Are you sure that this act or these acts (which D realised one of the attackers might do) is/are not of a fundamentally different nature to P's act which caused the death of V? If yes, guilty of murder. If no, not guilty of murder.

[Counsel] submitted that the expression 'fundamentally different' would normally need no further clarification, albeit that the judge would summarise the competing arguments. . . . We agree.'

---

PART B OFFENCES

B3 Sexual Offences

B3.22 Sexual Assault

The crime of sexual assault, contrary to the Sexual Offences Act 2003, s. 3, requires intentional touching, but the Court of Appeal in Heard [2007] EWCA Crim 125 rejected the submission that the need for intent made the crime one of specific intent. Hughes LJ said (at [31]):

Touching in sexual assault is an element requiring no more than basic intent. It follows that voluntary intoxication cannot be relied upon to negate that intent.

Suppose then that D staggers groggily into V and his hands briefly touch her breasts before he falls drunkenly to the floor. Is this to be construed as a sexual assault, as clearly it would be if he had fondled her breasts deliberately? One might imagine that it would be so construed, given that voluntary intoxication is no defence and that such intoxication is the only explanation for his behaviour. But no: a drunken accident, said Hughes LJ, remains an accident.

Sexual touching must be intentional, that is to say deliberate. . . . If, whether the defendant is intoxicated or otherwise, the touching is unintentional, this offence is not committed.

The 'accident' scenario is contrasted in Heard with that in which alcohol or drug abuse induces a confused state of mind in which D believes that 'what he is doing is something different to what he in fact does'. D may perhaps be so drunk that he fails to realise his pawing of V would be construed as sexual. In that scenario, D apparently has no defence.

See also A3.10 above.

B7 Company, Investment and Insolvency Offences

B7.19 Creating False or Misleading Impression as to Markets etc

Where shares or other investments are 'tipped' as good buy in a newspaper etc, one of the factors that might affect the willingness of prospective purchasers to risk their money is their knowledge and understanding of the tipper's recommendation. If would-be purchasers were made aware of the fact that the tipper has a vested interest in recommending the purchase of a particular share, and stands to profit substantially from his own recommendation, it is obvious that this would be capable of influencing their decisions. Accordingly, where a tipper fails to disclose that he has such an interest, an offence under the Financial Services and Markets Act 2000, s. 397, may well be committed: see Hipwell [2007] EWCA Crim 562 (decided under the Financial Services Act 1986, s. 47(2) (now repealed)).

B10 Terrorism, Piracy and Hijacking

B10.2 Definition of Terrorism

The definition of 'terrorism' in the Terrorism Act 2000, s. 1, was examined by the Court of Appeal in F [2007] EWCA Crim 243. In a ruling which was controversial but probably unavoidable under the rules of statutory interpretation, the court rejected arguments that anti-terrorism laws in the United Kingdom do not apply to those who seek the overthrow despotic foreign governments. The regime in question in F was that of Libya, but it is clear that the United Kingdom's anti-terrorism laws now apply (inter alia) to all those who would for political, religious or ideological purposes use force or threats of force to influence any government in the world. Giving the judgment of the court, Sir Igor Judge P said (at [16]):

Terrorism . . . extends to terrorist activities here and abroad, and terrorist actions against foreign governments fall within its ambit. The extension of terrorism offences to include terrorist activities abroad is a constant theme of the legislation, no doubt reflective of the international nature of terrorism, and perhaps also, of the need to avoid the United Kingdom becoming or appearing to be a safe haven for terrorists of any nationality, whether ultimately intent on pursuing their objectives in this country, or abroad, or in their own native countries. On the face of it, governments of countries other than the United Kingdom are to be protected from terrorist activities organised and planned here. This aspect of the legislation was reinforced by the insertion of ss. 63A-E into the 2000 Act by the Crime (International Co-operation) Act 2003, which makes clear that a resident in the United Kingdom would be guilty of an offence here if his actions abroad would have constituted an offence under s. 54 or ss. 56-61 of the 2000 Act if perpetrated in the United Kingdom.

At [26] to [27] he added:

We can see no reason why, given the random impact of terrorist activities, the citizens of Libya should not be protected from such activities by those resident in this country in the same way as the inhabitants of Belgium or the Netherlands or the Republic of Ireland. More important, we can see nothing in the legislation which might support this distinction.

What is striking about the language of s. 1, read as a whole, is its breadth. It does not specify that the ambit of its protection is limited to countries abroad with governments of any particular type or possessed of what we, with our fortunate traditions, would regard as the desirable characteristics of representative government. There is no list or schedule or statutory instrument which identifies the countries whose governments are included within s. 1(4)(d) or excluded from the application of the Act. Finally, the legislation does not exempt, nor make an exception, nor create a defence for, nor exculpate what some would describe as terrorism in a just cause. Such a concept is foreign to the Act. Terrorism is terrorism, whatever the motives of the perpetrators.

The possibility remains that a defendant charged with a terrorism offence could seek to justify his actions on the basis of a defence such as necessity, self-defence or the defence of others. The ruling in F does not necessarily preclude a defendant from advancing such a defence, but it does reject the use in that context of defences created by provisions of the Terrorism Act itself. By s. 58(1) for example, a person commits an offence if (a) he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or (b) he possesses a document or record containing information of that kind. By s. 58(3), it is a defence for a person charged with an offence under that section to prove that he had a reasonable excuse for his action or possession. Judge P said of this at [38]:

The fundamental flaw [with counsel's submissions relying on s. 58(3)] is that, on analysis, they are circular. They depend on the proposition that a reasonable excuse for conduct which constituted a crime may be found in the commission of the very crime prohibited by the statute. If correct, this would introduce an impossible incoherence into the statutory provisions. And for such an excuse to be 'reasonable', the carefully constructed definition of terrorism in s. 1 of the Act would become inoperative. Given the overall context, if Parliament had intended that this defence should apply in such circumstances, it is inconceivable that the statute would not expressly have addressed the problem either by an express restriction on the application of the Act to countries with a representative, democratic government, or by providing that an individual with a genuine grievance about a tyrannical regime should fall outside the statutory provisions which create terrorist offences. In reality, our conclusion on this second ground of appeal follows inexorably from our rejection of the first ground.

A person plotting in England to use acts of terrorism (as defined in the Terrorism Act 2000, s. 1) against a murderous foreign regime argue that in so doing he is seeking to prevent the commission of further crimes by that regime, and thus invoke the Criminal Law Act 1967, s. 3. This however would require him to find some way of distinguishing the decision of the House of Lords in Jones [2006] 2 All ER 741, [2006] UKHL 16 (as to which see Blackstone's Criminal Practice, A3.30) and the judgment in F does not encourage such attempts. Judge P said:

Mackay J [the trial judge] acknowledged that Jones was directed to entirely domestic issues. [Counsel] suggested that the decision, and the basis for it, was distinguishable because Jones related to events within England and Wales, a developed liberal democracy, rather than activity focussed, as it is in this case, on a foreign undemocratic country, where resort to self help might be more compelling. We recognise the distinction, but even if the long term target for the appellant was the present government in Libya, the prohibited activities alleged against him took place here.

B10.96 Possession of an Article for Terrorist Purposes
B10.101 Collection of Information

The relationship between the offence created by the Terrorism Act 2000, s. 57, (possession of an article for a purpose connected with the commission, preparation or instigation of an act of terrorism) and that created by s. 58 (collection recording or possession of document etc containing information likely to be useful to a terrorist) was considered by the Court of Appeal in M [2007] EWCA Crim 218. The court held that although documents containing information (including information stored on discs or USB storage devices etc) are 'articles', s. 58 (which unlike s. 57 does not refer to the instigation of terrorism) is not redundant because Parliament cannot have intended that s. 57 should apply to such documents. Hooper LJ explained (at [35] to [36]):

No one has ever suggested . . . that those who call in writing for attacks on non-Muslims could be convicted under section 57 of possessing an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the instigation of an act of terrorism.

It is apparent from the wording of the two sections and their juxtaposition that Parliament has laid down a different regime for documents and records and intended so to do. For the purposes of section 58 possession of a document of a kind likely to be useful to a person 'instigating' an act of terrorism is not enough (unless, of course, the document is also of a kind likely to be useful to a person 'committing or preparing' an act of terrorism). Parliament has not chosen to use the diffusely drawn terms of section 57 . . . when the making or possession of documents or records is in issue. . . . Legislation can and often does create overlapping offences. But Parliament could not have intended that the regime for documents and records in section 58 could be sidestepped by using section 57 and describing them as articles. Section 58 is not redundant.

B11 Offences Affecting Public Order

B11.156 Racial and Religious Hatred and Aggravation

The decision of the Court of Appeal in Rogers [2006] 1 WLR 962, [2005] EWCA Crim 2863 has now been affirmed by the House of Lords in Rogers [2007] UKHL 8. In upholding the appellant's conviction, the Court of Appeal had certified the following question for consideration by the Appellate Committee:

Do those who are not of British origin constitute a racial group within section 28(4) of the Crime and Disorder Act 1998?

To this question the answer was an unqualified, 'Yes', as would it be to the question whether 'foreigners' constitute such a group. Whether the evidence in any particular case proves that the offender's conduct demonstrated hostility to such a group, or was motivated by such hostility, is a question of fact for the decision-makers in the case.

The Court of Appeal expressed some concern in this case that:

The very width of the meaning of racial group for the purposes of section 28(4) gives rise to a danger that charges of aggravated offences may be brought where vulgar abuse has included racial epithets that did not, when all the relevant circumstances are considered, indicate hostility to the race in question.

If that is what the evidence suggests, said Baroness Hale, then of course, the normal criteria for bringing proceedings would not be met. But there is no reason for the Crown Prosecution Service to be any more hesitant about charging these offences, if they are properly supported by the available evidence, than about any other.

B12 Offences Relating to Weapons

In Ashton [2007] EWCA Crim 234, the Courts-Martial Appeal Court examined the legislation controlling the possession, sale or transfer of 'prohibited weapons', such as machine guns. The Firearms Act 1968, s. 5, prohibits the unauthorised possession, sale etc, or such weapons, ammunition, or of any component parts of such weapons, but the Firearms (Amendment) Act 1988, s. 8 provides that an offence under s. 5 is not committed if a person has in his possession a firearm rendered incapable of discharging any shot, bullet or other missile and it bears a mark approved by the Secretary of State for denoting that fact. Such a weapon must have been de-activated by one of two companies specifically identified in the principal Act and the company itself must have certified in writing that the work in question has been carried out.

A soldier attempted to sell a gas plug from a general purpose machine gun on E Bay. He was charged with attempting to sell a prohibited weapon, contrary to s. 5. The defence claimed that the gas plug could in fact have come from a deactivated weapon, and it seems that this was indeed possible. The judge advocate nevertheless ruled that this was immaterial, and the Court Martial Appeal Court agreed. The offence of attempting to sell a part of a prohibited weapon could be committed even where the part was taken from a deactivated weapon. Latham LJ said (at [7]):

Clearly the exception [in s. 8] is a considered and careful exception and . . . it is clear that Parliament intended to restrict tightly the operation of that exception. So long as a de-activated weapon remains in its complete state, there is therefore a justification in permitting it to be possessed or indeed traded on the open market. But it is clear from the exception that it is not intended to apply to any component part of such a weapon and that must be for the good public policy reason that once a weapon, de-activated or not, is disassembled then the parts which are then made available are capable of being re-assembled into a working weapon.

With respect, the obvious flaw in that argument is that if a deactivated weapon is sold intact it may subsequently be disassembled and the same mischief thus remains. If the conviction in this case is to be supported (as it can be), it must be on a different basis, namely that s. 8 does not exempt a machine gun merely because it has or may have been deactivated: it exempts weapons only in the specific and carefully certified circumstances there specified. Where it is not clear that the weapon has been 'officially' deactivated in strict accordance with the Act, the offence can still be committed. If the disassembled component is itself deactivated, marked and certified, there might be no problem, but that was not the case here. To put it another way, Parliament could not have intended to exempt a working part from a machine gun just because it might possibly have come from a deactivated weapon. That would drive a coach and horses through the safeguards imposed by s. 8.

B19 Offences Involving Writing Speech or Publication

B19.41 Malicious Communications

The Malicious Communications Act 1988, s. 1, was examined by the Court of Appeal in Connolly v DPP [2007] EWHC 237 (Admin). The first question that arose in that case was whether photographs of an abortion or of an aborted foetus were capable of being classed as 'indecent or grossly offensive' when sent unsolicited by an anti-abortion campaigner to employees of pharmacy stores that sold the morning after pill. The Divisional Court held that a jury was fully entitled to come to such a conclusion: Dyson LJ said:

The words 'grossly offensive' and 'indecent' are ordinary English words. They are not used in a special sense in section 1 of the 1988 Act. This is an appeal by way of case stated and it can only succeed if the appellant can identify a material error of law. On well established domestic law principles, that means that Mrs Connolly must show that the decision below that the photographs were indecent and grossly offensive was one which no court acquainted with the ordinary use of language could have reached: see per Lord Reid in Cozens v Brutus [1973] AC 854, 861 and Lord Hoffmann in Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929 paras 23-25.

The court was unimpressed with arguments based on freedom of expression, conscience and religious belief under the ECHR, Articles. 9 and 10. As Dyson LJ explained, the appellant's right to express her views about abortion did not justify the distress and anxiety that she intended to cause those who received the photographs.

On the basis of guidance given by the House of Lords in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557 the court made this more general comment as to the compatibility of s. 1 with ECHR principles:

It is possible to interpret section 1 of the 1988 Act in a way which is compatible with article 10 of the Convention. This can be done by giving a heightened meaning to the words 'grossly offensive' and 'indecent' or by reading into section 1 a provision to the effect that the section will not apply where to create an offence would be a breach of a person's Convention rights, ie a breach of article 10(1), not justified under article 10(2). Since the 1988 Act also applies to the sending of articles which do not engage any article of the Convention (for example, the sending of excrement in the post), it must follow that effect will be given to section 1 differently according to the nature of the communication that the article represents. The same article may be an expression in one case, and not an expression in another. To the eyes of someone schooled in the orthodox English domestic law rules of statutory interpretation, this seems quixotic. But in my view, it is the inevitable consequence of section 3 of the HRA.

B20 Offences Related to Drugs

B20.109 Sentencing: Class C Drugs; Cultivation of Cannabis for Own Use

In Saunders [2006] EWCA Crim 2621, D, aged 53 and arthritic, cultivated cannabis for his own use as a painkiller. A sentence of 14 months' imprisonment was quashed as manifestly excessive. The appropriate sentence in most 'personal use' cultivation cases would be between six and nine months' imprisonment; but the judge should have taken account of the fact that the production in the instant case was for accepted medical reasons. In those circumstances the court substituted a four month sentence that would permit the offender's immediate release.

B22 Offences Relating to the Proceeds of Criminal Conduct

B22.14 Money Laundering: Offences of Acquisition, Use or Possession

Hogan v DPP (2007) The Times, 28 February 2007 appears to confirm the view taken in Blackstone's Criminal Practice 2007 as to the allocation of the burden of proof where a defence is raised under the Proceeds of Crime Act 2002, s. 329(2). The wording of s. 329(2) does not suggest that any reverse burden was intended and as the court observed in Hogan it must therefore be for the prosecution to disprove a s. 329(2) defence if (but only if) it has been raised.

B22.15 Money Laundering, Stolen Goods and Wrongful Credits

In Hickey [2007] All ER (D) 371 (Feb), D pleaded guilty to an offence under the Proceeds of Crime Act 2002, s. 327(1)(c) (see Blackstone's Criminal Practice 2007, B22.6) on the basis that he had suspected that a vehicle he delivered to a buyer had been stolen. It is not clear whether a charge of handling could ever have been proved on the facts of that case, but it was accepted that there was no reason to suppose that he had been aware that the theft of the vehicle had been connected to a domestic burglary.

---

PART C ROAD TRAFFIC OFFENCES

C2 Evidence and Procedure in Road Traffic Cases

C2.1 Notice of Intended Prosecution

Myers [2007] EWCA Crim 599 provides guidance on the interpretation of the Road Traffic Offenders Act 1988, s. 2, by which no notice of intended prosecution need be served under s. 1 of the Act where, 'at the time of the offence or immediately after it, an accident occurs owing to the presence on a road of the vehicle in respect of which the offence was committed.'

M, E, and B were each driving their cars aggressively and showing off to each other. M performed a handbrake turn. B then appears to have attempted a similar turn, but crashed into a parked van and killed himself. Subsequently, M and E were charged with (and imprisoned for) dangerous driving, but appealed on the basis that no notice of possible prosecution had been served on them within the 14-day time-limit prescribed by s. 1.

Had it been proved that B died as a result of a collision with M, or as a result of a manoeuvre designed to avoid collision with M, or perhaps even as a result of a race with M, it could be said with some confidence that s. 2 applied and that the service of notice under s. 1 was unnecessary, but here there was nothing more than mutual showing off as incitement.

Having examined Quelch v Phipps [1955] 2 All ER 302 (see Blackstone's Criminal Practice 2007, C6.38), the court nevertheless concluded that s. 2 was applicable on these facts. May LJ explained (at [18] to [20]):

18. The policy of the relevant exception in section 2 must be, speaking generally, that drivers who have committed a relevant road traffic offence and whose vehicles have been involved in or concerned with an accident, do not need the warning or notification because the very fact of being involved in or concerned with the accident is a sufficient indication of the risk of prosecution. . . .
19. In many such instances, we would expect the offence to have been the or at least a cause of the accident, but the section does not we think absolutely require that. This is because the section attributes the accident to the presence of a vehicle on the road, not to the fact that its driver committed a road traffic offence. The policy of the section however, in our view, requires there to be a sufficient causal link between the offence and the accident that the driver does not need to be warned of the risk of prosecution.
20. Applying that analysis, we consider that there was a sufficient causal link between B's fatal accident and the presence on the road of the vehicles which these appellants were driving dangerously. All three of them were driving dangerously: one of them crashed his car. The accident occurred owing to the presence on the road of all three dangerously driven vehicles. Neither of the appellants needed to be warned, in the light of their involvement in that accident, that they risked prosecution.'

---

PART D PROCEDURE

D1 Police Powers

D1.167 Fixed Penalty Notices

The Environmental Offences (Fixed Penalties) (Miscellaneous Provisions) Regulations 2007 (SI 2007 No. 175) revoke and replace the corresponding Regulations of 2006 (SI 2006 No. 783). There is no material alteration to the provisions summarised in the main work.

D13 Trial on Indictment: General Matters and Pre-trial Procedure

D13.24 Preparatory Hearings under the CJA 1987

In H [2006] EWCA Crim 1975, the Court of Appeal held that an application concerning disclosure was not one of the purposes of a preparatory hearing within the meaning of the CJA 1987, s. 7(1) and that the Court of Appeal accordingly had no jurisdiction to hear an appeal against a ruling on such an application by virtue of s. 9(11).

The court subsequently certified that three questions of law of general public importance were involved in the decision, namely: (i) whether, for an appeal to lie to the Court of Appeal under the Criminal Justice Act 1987, s. 9(11), from an order or ruling the course of a preparatory hearing held under s. 7 of the Act, the order or ruling itself had to be for one of the purposes set out in s. 7 of the Act; (ii) if so, whether an order or ruling in determination of an application for disclosure under the Criminal Procedure and Investigations Act 1996, s. 8, fell within one of those purposes; and (iii) in any event, whether an order or ruling in determination of an application for disclosure under s. 8 of the 1996 Act could be the subject of an application under the provisions of s. 9(11) of the 1987 Act.

In H [2007] UKHL 7, [2007] All ER (D) 377 (Feb) the House of Lords affirmed this ruling, and were unanimous in holding that in this case no appeal lay under s. 9(11), but on some of the certified points their Lordships were not in full agreement.

Lord Rodger, with whom (on this issue) Lord Hope and Lord Mance agreed, said (at [66]):

A judge does not have power to determine an application for disclosure within the scope of a preparatory hearing. More particularly, in agreement with all your Lordships, I conclude that a judge has no power to determine such an application under section 9(3). But the judge does have power under section 8(2) of the 1996 Act to determine an application for disclosure, whenever it is made. There is, therefore, nothing to prevent a trial judge from determining that application on the same occasion as, but separately from, a preparatory hearing - which is, in substance, what the judge did in the present case. The important point, however, is that, if he does so, his decision on that matter does not fall within the scope of section 9 and no appeal lies under section 9(11). So the parties, and indeed the judge, gain nothing by delaying the determination of such applications until the time when any preparatory hearing is held.

Lord Rodger accordingly answered the third of the certified questions in the negative. Since the other two questions were, in his view, based on a misconceived interpretation of ss 7 and 9 he declined to answer them.

Lord Mance held that, once a preparatory hearing has validly been ordered for purposes listed in s. 7(1), an order or ruling made during such a hearing within the scope of the powers conferred in s. 9 need not itself be for any of such purposes, and may thus, if made within the scope of the powers conferred by s. 9(3)(b) or (c), give rise, with leave, to an appeal under s. 9(11). Alternatively, an order or ruling made during such a hearing within the scope of the powers specified in s. 9 will in practice fall within one or more of such purposes listed in s. 7(1). The real question, however, is not whether such an order or ruling falls within one of the purposes set out in s. 7(1), but whether it falls within s. 9.

Lord Scott (with whom Lord Nicholls 'substantially agreed') agreed that the Court of Appeal had no jurisdiction to deal with the appellant's appeal. If it were desirable that the Court of Appeal should have jurisdiction to entertain appeals on any question of law arising out of the determination of a disclosure application, or out of the determination of any other interlocutory application in criminal proceedings, legislation conferring that jurisdiction would, in their view, be necessary. But their answers to the three certified question were in some respects different to those of Lord Rodger. Lord Scott said (at [45]):

1. Given the view I take of the breadth of the section 7(1) purposes for which an order for a preparatory hearing to be held can be made, I cannot conceive of an order or ruling under section 9(3) (b), (c) or, now, (d), thus qualifying for an appeal under section 9(11), that would not be for one of the purposes set out in section 7(1). My answer to the question is that nothing more need be shown than that the appeal can be brought within section 9(11).
2. I cannot conceive of an application for disclosure under section 8 of the 1996 Act that would not fall within one or other of the section 7(1) purposes.
3. An order or ruling in determination of an application for disclosure under section 8 of the 1996 Act would qualify for an appeal under section 9(11) if, but not unless, it involved the determination of a 'question of law relating to the case'. It would not necessarily, or, in my opinion, usually, do so, and if it did not do so the order or ruling could not be the subject of an appeal under section 9(11).'

As Lord Nicholls explained (at [12]), cases may arise in which a disclosure ruling depends on the judge's view on a question of law, such as the proper interpretation of part of the indictment. Then bound up within the judge's disclosure ruling would be a ruling on a question of law relating to the case.

D18 Trial on Indictment: Sentencing Procedure

D18.9 Newton Hearings

Where, following a Newton hearing in the magistrates' court, a defendant is committed to the Crown Court for sentence, the Crown Court judge has jurisdiction to hold a fresh Newton hearing if satisfied that it is in the interests of fairness and justice to do so. This does not mean that the judge should necessarily accede to an application for such a hearing. It is a matter of judicial discretion. No formula can prescribe how that discretion should be exercised in a given case, since everything depends on the facts and circumstances and each case must be considered individually. That follows from the express terms of the Powers of Criminal Courts (Sentencing) Act 2000, s. 5(1): R (Gillan) v DPP [2007] All ER (D) 185 (Feb).

D20 Summary Trial: The Course of the Trial

D20.24 Submission of No Case to Answer

See Malcolm v DPP [2007] EWHC 363, which is discussed in this update at F6.1.

D24 Appeal to the Court of Appeal

D24.70 Approach of the Court of Appeal to Determining Appeals against Sentence

In Rahiem [2007] EWCA Crim 653 the Court of Appeal drew attention to the need for counsel, when preparing an advice on appeal in areas in which there are few authorities and no guidance in the authorities or from the Sentencing Guidelines Council, to cite any recent authority which might be in point.

---

PART E SENTENCING

E2 Custodial Sentences: General Provisions

In Seed [2007] EWCA Crim 254, [2007] All ER (D) 161 (Feb), Lord Phillips CJ began his judgment with the following observations:

1. Once again judges who have to sentence offenders are confronted with the fact that the prisons are full. When they impose sentences of imprisonment - and very often the nature of the offence will mean that there is no alternative to this course - the prison regime that the offender will experience will be likely to be more punitive because of the consequence of overcrowding and the opportunities for rehabilitative intervention in prison will be restricted. Those already serving sentences are subject to the same adverse consequences. The Strangeways Report of Lord Woolf spells out the consequences of prison overcrowding.
2. The numbers of those in prison are a product of the numbers of custodial sentences imposed and the length of those sentences. Parliament has not given judges a free hand in respect of either of these. Statutory requirements have been laid down both in relation to the circumstances in which custodial sentences should be imposed and the length of those sentences. It is of course the duty of the judge to follow these requirements. Requirements of the Criminal Justice Act 2003 dealing with the sentencing for serious offences may well have the effect of increasing the size of the prison population. The requirements of Schedule 21 making provision for the determination of the minimum term in relation to mandatory life sentences may well, in due course, be seen to have this effect. Figures in relation to those serving indeterminate sentences for public protection suggest that these sentences may already be making a significant contribution to the rise in prison numbers.
3. In contrast to the statutory provisions that deal with serious and dangerous offenders, there are other provisions that should tend to reduce prison numbers. Section 152(2) of the 2003 Act provides:
   
   'The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.'
   
   This is an important provision. It requires the court, when looking at the particulars of the offence, to decide whether the 'custodial threshold' has been passed. If it has not, then no custodial sentence can be imposed. If it has, it does not follow that a custodial sentence must be imposed. The effect of a guilty plea or of personal mitigation may make it appropriate for the sentencer to impose a non-custodial sentence.
4. Section 153 of the 2003 Act provides that, where a custodial sentence is imposed, it must be:
   
   'for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it.'
   
   This also is an important provision.
5. In times of prison overcrowding it is particularly important that judges and magistrates pay close regard to the requirements of both these provisions. In particular, when considering the length of a custodial sentence, the court should properly bear in mind that the prison regime is likely to be more punitive as a result of prison overcrowding.
6. Section 142 of the 2003 Act sets out the purposes of sentencing. The matters to which the court must have regard when sentencing an offender are:
   1. the punishment of offenders;
   2. the reduction of crime, including its reduction by deterrence;
   3. the reform and rehabilitation of offenders;
   4. the protection of the public; and
   5. the making of reparation by offenders to persons affected by their offences.
   Unless imprisonment is necessary for the protection of the public the court should always give consideration to the question of whether the aims of rehabilitation and thus the reduction of crime cannot better be achieved by a fine or community sentence rather than by imprisonment and whether punishment cannot adequately be achieved by such a sentence. We believe that there may have been a reluctance to impose fines because fines were often not enforced. Enforcement of fines is now rigorous and effective and, where the offender has the means, a heavy fine can often be an adequate and appropriate punishment. If so, the 2003 Act requires a fine to be imposed rather than a community sentence.
7. Particular care should be exercised before imposing a custodial sentence on a first offender. Association with seasoned criminals may make re-offending more likely rather than deter it, particularly where the offender is young. A clean record can be important personal mitigation and may make a custodial sentence inappropriate, notwithstanding that the custodial threshold is crossed.

E2.7 Crediting of Periods of Remand in Custody

In a judgment of great length and complexity, the Court of Appeal in Gordon [2007] EWCA Crim 165 has examined the operation of and interaction between the staggeringly convoluted sentencing regimes created by the CJA 1967, s.67, and the CJA 2003, s. 240, and the impact on the sentencing process of time spent by defendants on remand. In the past, the court has sometimes expressed exasperation or outrage as to the complexity of modern sentencing law, but on this occasion it appears to have exercised remarkable restraint in the face of grave legislative provocation. Latham LJ did however say this:

The judgment on the broad principles is heavily dependent on [counsel's] submissions, and effectively quotes substantial portions of the written submissions. It would be something of a comfort if their impressive work could guarantee that our analysis was free from error or oversight. In this area of legislation however, experience has shown that hidden traps abound, and we, not they, are responsible for any failures to recognise and avoid the traps.

The first part of the judgment (that on the 'broad principles') is divided by subheadings into a number of distinct parts, and in the interests of intelligibility these headings are reproduced here.

Time spent on remand

Whereas the 1967 Act continues to apply to sentences of imprisonment imposed in relation to offences committed before 4 April 2005, the regime for offences committed on or after 4 April 2005 is governed instead by s. 240 of the 2003 Act, under which reduction for time spent in custody on remand is no longer automatic. Instead the court may order that the days served on remand count as part of the sentence. It is essential that any such decision is announced, and the reasons for it explained, in open court. For offences which straddle 4 April 2005 (ie committed over a period extending on either side of that date), the 2003 Act again applies.

'Mixed' cases

'Mixed' cases create particular difficulties. Where consecutive sentences are imposed in respect of a series of offences committed both before and after 4 April 2005, the entire remand period must be credited in respect of the pre-April 2005 offence, so a direction under s. 240 will not in practice be required. Where, however, concurrent sentences are imposed the court must address s. 240 of the 2003 Act. The court might consider that to grant credit would, in effect, produce double credit, and if so may accordingly disallow it.

Court order to return to prison

An offender who is recalled to prison is 'liable to be detained in pursuance of his sentence'. Therefore time spent in custody in connection with a fresh offence while the defendant is serving a sentence of imprisonment following his recall after release on licence, does not form part of the 'relevant period' either for the purposes of s. 67 of the 1967 Act or under the 2003 Act. As Home Office Circular No 37 of 2005 explains:

. . .it is not appropriate for remand days to be counted towards any subsequent sentence imposed in respect of the second offence where a period in custody is being served further to recall from release on licence in respect of the first offence.

Consecutive sentences for released prisoners

Before the coming into force of the CJA 2003, the arrangements in respect of consecutive sentences for released prisoners were governed by s. 84(1) of the 2000 Act. This provides:

A court sentencing a person to a term of imprisonment shall not order or direct that the term shall commence on the expiry of any other sentence of imprisonment from which he has been released under part II of the Criminal Justice Act 1991 (early release of prisoners).

In other words, a sentence cannot be imposed to begin on the expiry of another sentence from which the prisoner has been released, if that 'other sentence' was imposed in respect of an offence committed before 4 April 2005. However s. 84 does not prevent a court from ordering a period of return under s. 116 or imposing a consecutive sentence for the new offence.

By the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2005, sch. 2, para 30, the repeal of s. 84 does not apply to a sentence of imprisonment imposed for an offence committed before 4 April 2005. The restrictions in s. 84 are effectively reproduced by the CJA 2003, s. 265, which came into force on 4 April 2005 and provides:

A court sentencing a person to a term of imprisonment may not order or direct that the term is to commence on the expiry of any other sentence of imprisonment from which he has been released early under this Chapter.

Section 265 is however subject to sch. 2, para. 30 (above). It applies only when the 'other sentence of imprisonment' was imposed for an offence committed on or after 4 April 2005.

Where the 2003 Act's regime applies, a court dealing with an offence committed after release on licence for a previous offence, but while the full term of the sentence is incomplete, cannot make an order for return, nor an order that the sentence should run consecutively to the full term or any period of recall order made by the Secretary of State to serve a further part of that sentence. To avoid double counting, when considering any direction in relation to time served for days spent on remand, the court should consider whether it would be 'just' to reduce from the number of days included in the order those days or periods when the offender was serving part of the earlier sentence. (See also Howell [2006] EWCA Crim 860, [2007] All ER (D) 79 (Jan)).

Discretionary life sentences

Section 82A of the 2000 provides the regime for the determination of tariffs when the court passes a life sentence in circumstances where the sentence is not fixed by law. It applies to discretionary life sentences, orders for custody for life, detention for life, imprisonment for public protection under s. 225 or detention for public protection under s. 226 of the 2003 Act. Section 82A(2) provides that (unless the court specifically orders otherwise) the court must order that the provisions of the Crime (Sentences) Act 1997, s. 28(5) to (8) (early release provisions) apply to an offender who has served a specified part of his sentence, and in calculating that part of the sentence s. 82A requires the court to take account of the effect of any direction which it would have given under the CJA 2003, s. 240 if it had sentenced him to a term of imprisonment. This means that when fixing the appropriate determinate sentence, the court should apply the regime under s. 240 to time spent on remand.

Errors and omissions

Under s. 155 of the 2000 Act (see Blackstone's Criminal Practice, D18.57), the Crown Court may vary or rescind any sentence imposed or other order made, provided the variation is made within a period of 28 days beginning with the day on which the sentence or other order was imposed or made. Section 155 allows a small degree of latitude, and the 28-day limit would not prohibit what was in effect a later curing of a mere procedural irregularity in the way in which the order of the court was recorded, or a later procedural step to complete an inchoate order, but without affecting what has already been announced. Subject to such considerations, the limitation point applies. See Menocal [1980] AC 598.

A judge may however specifically adjourn one part of a sentence. In the context of s. 240, the number of days during which the defendant was remanded in custody does not, strictly speaking, form part of the sentence. In theory, it would be open to the court to adjourn the entire sentencing process until satisfied that the number of days properly to be regarded as time served was accurately calculated. That would normally be inappropriate. However, once the court has decided that credit should be given, it should say so, and it would then be entitled to adjourn for appropriate information to be provided about the relevant number of days. If, for whatever reason, that calculation has not been made, or the court is uncertain about the 'time served', but considers that, in principle, the time spent in custody should be treated as time served, the court may properly direct that the period shall be deducted after the appropriate calculation has been made, and adjourn that part of the process. Thereafter, the calculation should be made promptly and the final decision should, save in exceptional circumstances, be concluded within 28 days. However, even if delayed beyond that period, it would be permissible for the Crown Court to deal with what was no more than the final implementation of its order. In the end, the order should be listed and pronounced in open court.

Any misstatement of the number of days' credit to which a defendant is entitled will almost invariably be the product of administrative error (see Annesley [1976] 1 All ER 589). The court could see no good reason why a judge could not use language when sentencing to make it clear that the defendant should receive credit for the full period of time spent in custody on remand or any particular part of that period, that on the basis of the information currently before him the relevant period was 'X' days, but that if that period proves to be based on an administrative error, the court would, on being informed, order an amendment of the record for the correct period to be recorded. The number of days to be credited may then be regarded as a temporary rather than a final order, and therefore open to correction if and when any error emerges. If of course there were any continuing issue about the number of days, the case would have to be re-listed for a judicial decision in open court. Again, the corrected order should be listed and pronounced in open court. Arrangements like these would not fall foul of the 28-day rule.

E10 Community Orders under the Criminal Justice Act 2003

E10.1 Commencement

The Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) (Amendment) Order 2007 (SI 2007 No. 391) amends the principal Order (SI 2005 No. 950) so as to postpone commencement of ss. 177, 179 and 180 of and schs. 8 and 9 to the Act to April 2009. The postponement has effect insofar as the provisions apply to an offender aged 16 or 17. A similar postponement is applied to related amending provisions in sch. 32 of the 2003 Act.

---

PART F EVIDENCE

F6 Examination in Chief

F6.1 Duty of Prosecution to Call All their Evidence before Closing Case

Jolly v DPP [2000] Crim LR 471 was one of the authorities considered by the Divisional Court in Malcolm v DPP [2007] EWHC 363, in which the prosecution were held to have been rightly permitted to reopen their case in response to a defence submission of no case to answer.

At trial in this drink driving case, counsel for the accused waited until the end of the trial before submitting that the prosecution had failed to prove that the police had warned the accused, when requiring her to provide a specimen of breath for analysis, that she would commit an offence if she failed or refused without good cause to provide the specimen required (see the Road Traffic Act 1988, s. 7(7), Murray v DPP [1993] RTR 209 and Blackstone's Criminal Practice 2007, C5.12.

Now the accused had in any event provided a specimen, so this objection was nothing more than an attempt to exploit a bizarre legal technicality. It is regrettable that the judges in drink driving cases have failed to stamp more firmly on loophole defence of this kind, which no longer have any proper statutory basis, given the abrogation of the notorious 'rule in Scott v Baker' by the Transport Act 1981, the provisions of which were later incorporated within the Road Traffic legislation of 1988. But counsel's tactics were also open to criticism on the basis that she had effectively conducted an ambush defence, and had done so at the very last minute. Stanley Burnton J said:

In my judgment, [counsel's] submissions, which emphasised the obligation of the prosecution to prove its case in its entirety before closing its case, and certainly before end of the final speech for the defence, had an anachronistic, and obsolete, ring. Criminal trials are no longer to be treated as a game, in which each move is final and any omission by the prosecution leads to its failure. It is the duty of the defence to make its defence and the issues it raises clear to the prosecution and to the court at an early stage. That duty is implicit in rule 3.3 of the Criminal Procedure Rules, which requires the parties actively to assist the exercise by the court of its case management powers, the exercise of which requires early identification of the real issues. Even in a relatively straightforward trial such as the present, in the magistrates' court (where there is not yet any requirement of a defence statement or a pre-trial review), it is the duty of the defence to make the real issues clear at the latest before the prosecution closes its case.

As to the circumstances in which reopening of the prosecution case is permissible, the court in Malcolm v DPP cites and appear to approve of this summary of the relevant principles, given by McKay J in Tuck v Vehicle Inspectorate [2004] EWHC 728 (Admin):

1. The discretion to allow the case to be re-opened is not limited to matters arising ex improviso or mere technicalities, but is a more 'general discretion' (see Kennedy LJ in Jolly v DPP).
2. The exercise of this discretion should not be interfered with by a higher court unless its exercise was wrong in principle or perverse (R v Tate [1997] RTR 17 at 22C).
3. The general rule remains that the prosecution must finish its case once and for all (R v Pilcher 60 Cr App R 1 at 5) and the test to be applied is narrower than consideration of whether the additional evidence would be of value to the tribunal (loc cit). The discretion will only be exercised 'on the rarest of occasions' (R v Francis 91 Cr App R 271 at 175).
4. The discretion must be exercised carefully having regard to the need to be fair to the defendant (Matthews v Morris [1981] JP 262), and giving consideration to the question of whether any prejudice to the defendant will be caused (Tate at 23C).
5. The courts have in the past differed as to whether the mere loss of a tactical advantage can constitute such prejudice. The defendant, having spotted and drawn attention to a gap in the case by way of submission, as to which he could have remained silent, and taken advantage of that gap at the close of the evidence, was thought in R v Munnery [1992] 94 Cr App R 164 to be an important consideration. However, later cases take a discernibly different approach. A different view was expressed in Khatibi v DPP [2004] EWCA 83 Admin at [25] to [26] and in Leeson [2000] RTR 385.
6. Criminal procedure, while adversarial, is not a game (see Leeson, Hughes v DPP [2003] EWHC Admin 2470), and the overall interests of justice include giving effect to the requirement that a prosecution should not fail through inefficiency, carelessness or oversight.
7. Of particular significance is the consideration of whether there is any risk of prejudice to the defendant (see Jolly and Tate).'

In those circumstances, it was clearly right that the prosecution should be permitted to respond by recalling the police officer to establish that the statutory warning was in fact given. Stanley Burnton J said:

[There] were special circumstances justifying the recall of Sergeant Webster, notwithstanding the fact that the justices had retired and had partially announced their decision. The only criticism that could be made of the prosecution is that they should have asked to recall Sergeant Webster as soon as [counsel] took the section 7(7) point. But their failure immediately to appreciate the importance of the point is forgivable. Far more important is the question whether justice could be done. The appellant was available to be recalled to dispute the officer's evidence, if it was disputed. In fact it was not. There was no injustice to her. In the circumstances of this case the magistrates were fully entitled to exercise their undoubted discretion as they did.

F13 Evidence of Good Character

F13.7 Where One Accused is of Good Character but Another is Not

The brief report of Purdy [2007] EWCA Crim 295 in the All England Reporter at [2007] All ER (D) 17 (Feb) appears to contradict the principle (established in Vye [1993] 1 WLR 471) that an accused who is of bad character cannot complain of any prejudice he may suffer through revelations of a co-accused's good character. The full transcript of the judgment, however, provides an explanation of sorts.

The trial judge in Purdy agreed to the admission of evidence concerning the appellant's previous convictions, but then inadvertently attributed them to the co-accused, W. When this error was pointed out, the judge hastily corrected himself, saying that W had no such convictions. This was held to have been a much worse (and an irremediable) mistake, because the reference to W as being of good character gave him an unfair advantage and made it more likely that the jury would convict the man with the bad character, namely the appellant.

What is not stated in this report (but is apparent from the full judgment at [13]) is that W did indeed have previous convictions. They were not however convictions that the prosecution had sought to have admitted in evidence. To that extent, the appellant may indeed have been prejudiced, although this was not a case in which cut-throat defences had been run, or in which the innocence of one would point to the guilt of the other; and whereas W may have benefited from the error, the evidence against the appellant had been properly given, so it is by no means obvious that the error did him any great injustice.

F16 Hearsay (other than Confessions)

F16.17 Hearsay Admissible in the Interests of Justice

In M [2007] EWCA Crim 219, the Court of Appeal has for the first time considered the possible application of the Criminal Justice Act 2003, s. 114(1)(d), to evidence of statements (other than confessions) made by defendants prior to the trial. Some of the court's observations may also be relevant to confessions that implicate or exculpate co-defendants, and to the interpretation of s. 114(1)(d) and 114(2) generally.

Finch [2007] EWCA Crim 36, which was examined in last month's update, was concerned with the confession of an alleged accomplice who had pleaded guilty and who accordingly was no longer a defendant. Both cases contain references to the Police and Criminal Evidence Act 1984, s. 76A, as do earlier judgments in Williams [2006] EWCA Crim 3300 and Hayter [2005] UKHL 6; but in none of those cases was s. 76A strictly applicable. Indeed, it was described in Williams as 'something of a distraction'. We are still waiting, therefore, for the first reported case directly concerning s. 76A.

The facts of M cannot be published for the time being, because a re-trial of the defendants has been ordered; but permission has been given for the relevant points of law to be reported. The case concerned a statement made by one of a group of defendants whilst on remand in connection with a serious offence. That statement was not a confession (and therefore was not admissible under s. 76 or s. 76A) but was merely an accusation made against one of the other defendants.

The trial judge, having been referred to the Criminal Justice Act 2003, ss. 114(1)(d) and 114(2), ruled that nothing in those provisions was intended by Parliament to abrogate the well known common law rule that an out of court statement by one defendant is inadmissible as evidence against any co-defendant, unless made in the co-defendant's hearing and expressly or impliedly concurred in by that co-defendant.

The judge's ruling was understandable. In Hayter, the House of Lords had only recently concluded that a confession by one defendant could not be used directly as evidence against another, and did not at any point suggest that the 2003 Act would (if in force) have made any difference on that score. As Lord Rodger pointed out in Hayter (albeit in the context of a dissenting opinion), there is no indication that Parliament intended the 2003 Act to undermine or alter the law governing confessions, save in those limited circumstances to which the new s. 76A applies. If D1's confession cannot be used against D2, it would seem remarkable if D1's pre-trial accusation of D2 could be treated any more generously.

More recently, the Court of Appeal in Williams had criticised the trial judge's summing up on the specific basis that:

He did not warn the jury that what one defendant had said in interview could not be used against another defendant. He did not explain why that was so in the customary fashion, namely because it was hearsay evidence. The co-defendant had not heard what the one defendant had said about him and had not had the opportunity to dispute it. . . . Where there are three defendants, each of whom had said things in interview about his own role and also about the roles of the others, it was, in our view, vital that the judge should make it clear that anything accusatory that one defendant said about another defendant was not evidence against that other defendant.

In M, however, the Court of Appeal held that the CJA 2003 had changed the ground rules. Hughes LJ said (at [20] to [21]):

The conventional direction . . . that has historically been given to juries [is] that what defendant A says to the police is evidence only when considering his case and is to be ignored when considering the case of defendants B, C or D. The reason why that has always been the direction given is that what A says to the police is hearsay so far as B, C or D are concerned. Until the passage of the Criminal Justice Act 2003 it was, almost invariably, inadmissible hearsay; hence the direction. The 2003 Act makes hearsay admissible in some circumstances. In the context of this case it makes it admissible if, but only if, the judge concludes that it is in the interests of justice that it should be admitted. It follows without question that if it is admitted there can be no possibility of what we have described as the conventional direction any longer being given. If hearsay evidence is admitted in the interests of justice the jury is by law entitled to consider it, to determine its weight and to make up its mind whether it can or cannot rely upon it. It would be a plain nonsense to suggest that such hearsay evidence could be admissible, yet still the jury should be directed that it was not evidence except in the case of [the maker]. There is no doubt that if and when hearsay evidence of this kind is ruled admissible it becomes evidence in the case generally.

It follows that if the judge meant . . . that the conventional or historical rule remained in force even if evidence such as this was admitted, then his ruling is founded on a fundamental misapprehension as to the law.

One can see the logic of this argument, but any 'fundamental misapprehension' on the part of the trial judge in M was clearly shared by the Court of Appeal in Williams and perhaps also by the House of Lords in Hayter. Neither of those cases was cited in M. In the circumstances, this area of law cannot yet be regarded as settled.

---

NEW LEGISLATION

Environmental Offences (Fixed Penalties) (Miscellaneous Provisions) Regulations 2007 (SI 2007 No. 175)

These Regulations revoke and replace the corresponding Regulations of 2006 (SI 2006 No. 783).

Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) (Amendment) Order 2007 (SI 2007 No. 391)

This Order amends the principal Order (SI 2005 No. 950) so as to postpone commencement of ss. 177, 179 and 180 of and schs. 8 and 9 to the Act to April 2009. The postponement has effect insofar as the provisions apply to an offender aged 16 or 17. A similar postponement is applied to related amending provisions in sch. 32 of the 2003 Act.

Road Safety Act 2006 (Commencement No. 1) (England and Wales) Order 2007 (SI 2007 No. 466)

This Order brings ss. 44 (enforcement authorities under the Vehicles (Crime) Act 2001) and 52 (immediate suspension and revocation of taxi driver's licence) into force on 16 March 2007.

^ Return to the top