 |
|
|||||||||
|
Companion Website
Blackstone's Criminal Practice 2007
May 2007
May 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 May update primarily covers developments occurring or reported in April 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
In CPS v P [2007] EWHC 946 (Admin) the Divisional Court considered whether, despite the abolition by the Crime and Disorder Act 1998, s. 34, of the presumption of doli incapax in the case of children aged between 10 and 14, it remains open to the defence to prove that a particular child was in fact doli incapax: i.e. that even if he acted with the mens rea required for the offence he did not appreciate the criminality or serious wrongfulness of his behaviour.
The view adopted in Blackstone's Criminal Practice is that the defence was wholly abolished by s. 34, and it is pointed out that the government rejected a proposed amendment that would expressly have preserved the defence without the presumption.
In CPS v P, however, Smith LJ considered that there are conflicting indications as to what was Parliament's intent, and her provisional conclusion (obiter, and not fully supported by Gross J) was that the basic defence remains intact. She said (at [46] to [47]):
It appears to me that the effect of s. 34 is to abolish the presumption that a child is doli incapax but not the defence itself. Although I accept that there may not in the past have been any clear recognition that the defence existed separately from the presumption by which it was applied, it seems to me that the defence must be capable of existing without being attached to the presumption. The two are distinct concepts. The defence is 'I did not know that this act was seriously wrong'. The practical problems arose because this was presumed to apply in every case of a child of 10 but under 14 and extraneous evidence had to be called to rebut the presumption. If the presumption is removed, I would have thought that there remains a perfectly workable defence. I stress that in making these observations, I am drawing attention to the potential strength of the argument and the need for this issue to be authoritatively determined, after full argument, in a case in which it is properly raised.
If the defence remains available, I would think that there would have to be an evidential burden on the defence to raise the issue. If that were done, where would the burden of proof lie? And what would be the standard of proof? . . .
Here again, my observations are necessarily obiter but it appears to me that, as the defence of doli incapax would be a common law defence as opposed to a statutory one, as a matter of general principle the burden should remain on the Crown to prove that the child had the requisite understanding. Moreover, the standard of proof should be the usual criminal standard.'
These dicta from CPS v P clearly do not decide the point, which will surely come before the courts again before long. One objection to the continued existence of the rule is that incapacity of this kind is not dependent on age. A handicapped 17-year-old may have less understanding of right and wrong than a less handicapped 12-year-old. But as Smith LJ conceded at [48], there may be other ways of dealing with such cases:
There is a large measure of overlap between the issues of "sufficient understanding of right from wrong", "fitness to plead", "ability to participate effectively in a trial" and "the fairness of the trial". For that reason, my observations about the availability of the defence of doli incapax may have but little impact on the conduct of cases in future. A child who, due to immaturity or lack of understanding, does not know that what is alleged against him is seriously wrong may well also, for the same reasons, be unable to participate effectively in a trial. . ."
As to fitness to plead and related issues, see D19.39.
PART B OFFENCES
B3 Sexual Offences
B3.1 Sentencing Guidelines: General
The Sentencing Guidelines Council has issued guidelines in respect of the various offences under the Sexual Offences Act 2003 and offences under the Protection of Children Act 1978 and the Criminal Justice Act 1988. See here (PDF File).
B10.96 Possession of an Article for Terrorist Purposes
B10.101 Collection of Information
Rowe [2007] EWCA Crim 635 was approved and M [2007] EWCA Crim 218 was once again disapproved in M (No. 2) [2007] EWCA Crim 970. The Court of Appeal rejected submissions that the decision in the first M appeal remained binding on the Crown Court unless reversed by the House of Lords.
Subject to any further ruling by the Court of Appeal or the House of Lords, whenever the construction and ambit of the Terrorism Act 2000, s. 57, arises for consideration in the Crown Court, Rowe is now the authority that must be followed. It was examined in last month's update.
B13 Offences affecting Enjoyment of Premises
B13.69 Trespass on a Protected Site
The Serious Organised Crime and Police Act 2005 (Designated Sites under Section 128) Order 2007 (SI 2007 No. 930) designates 16 further sites (being government buildings and premises connected with the Royal family) for the purposes of s. 128 (summary offence of entering or being on any designated site as a trespasser). An amending Order (SI 2007 No. 1387) substitutes a new map for the area of one of those sites (Chequers).
PART C ROAD TRAFFIC OFFENCES
C1 Definitions and Basic Principles in Road Traffic Cases
C1.1 Accident
The concept of an 'accident' was considered at length by the Court of Appeal in Currie [2007] EWCA Crim 926, in which D appealed against his conviction for dangerous driving on the basis that he had not been served within the 14-day time-limit with a notice of intended prosecution. See Blackstone's Criminal Practice, C2.1. The Crown, however, contended that D had been involved in an accident, and that accordingly no such notice was required to be given (Road Traffic Offenders Act 1988, s. 2(1)).
D had been stopped by police officers who suspected cannabis misuse. He and his passengers were required to step out of their car but, when one of the passengers became troublesome and the officers were distracted, D got back into the car and started the ignition. As one of the officers attempted to prevent him from driving off, the car lurched forward and she had to put her hands on the bonnet to save herself from being knocked over. D then reversed away and escaped. D denied driving at the officer but admitted driving away. He contended that there had been no accident for the purposes of s. 2(1). An issue also arose as to whether it should be for the judge or the jury to determine whether an accident in fact occurred.
The Court of Appeal held that, where there were disputed issues of fact to be determined in order to decide whether there had been an accident for the purposes of s. 2(1) of the Act, they had to be determined by the judge. The burden of proof is on the prosecution.
As to what is or is not capable of being classified as an accident, the court cited the judgment of Bridge LJ in Chief Constable of West Midlands Police v Billingham [1979] RTR 446 I which he said that 'accident':
[Is] a word which has a perfectly well understood meaning in ordinary parlance, but that meaning is an elastic one according to the context in which the word is used.
In the context of the Road Traffic Offenders Act 1988, s. 2(1), the reason why notice of intended prosecution is not required where there has been an 'accident' is that D will in such cases be aware of what has happened and put on his guard. Accordingly, it does not matter whether what happened was truly 'accidental' or the result of deliberate misconduct by D or another. There had been physical contact between D's car and the police officer, and the trial judge was fully entitled to classify that as an accident for the purposes of s. 2(1).
PART D PROCEDURE
D11 Arraignment and Pleas
D11.64 Meaning of Conviction and Acquittal in Context of Autrefois Pleas
In K [2007] EWCA Crim 971 the defendants were charged with various counts contrary to the Terrorism Act 2000, including conspiracy to provide property for the purposes of terrorism, knowing or intending that it would be used for the purposes of terrorism. An issue arose in this context as to whether a plea of double jeopardy could take account of deportation proceedings before a Special Immigration Appeals Commission (SIAC) and cases decided under the anti-terrorism statutory scheme. The court held that double jeopardy could be invoked only where both the previous and the current proceedings were criminal in nature.
Anything falling outside the limits of the double jeopardy principle, but which involves an alleged abuse of process, or unfairness, or oppression, may however be dealt under well established principles applicable to such matters.
D13 Pre-trial and Preparatory Hearings
D13.20 Preparatory Hearings under the Criminal Procedure and Investigations Act 1996
In M (No. 2) [2007] EWCA Crim 970 a Crown Court judge was faced with a dilemma caused by conflicting rulings from the Court of Appeal. The first ruling was made on an appeal in the case before him and replaced rulings he himself had made in that case. The second (Rowe [2007] EWCA Crim 635) was a ruling made by a five-judge court in a different case, in which the court's earlier ruling was declared to have been made per incuriam.
It was argued that the Court of Appeal's original ruling in M remained binding in that particular case (if nowhere else) until and unless reversed by the House of Lords. The Court of Appeal disagreed. Notwithstanding that it resulted from a decision of that same Court, the ruling remained capable of variation or modification if the interests of justice so required (Criminal Procedure and Investigations Act 1996, s. 31(11)). Rowe concluded that the decision in the first appeal, and therefore the basis on which this complex trial was otherwise to proceed, was based on an incorrect legal analysis of vital statutory provisions. The judge had to face legal realities and could not ignore the new ruling or brush it aside.
D14 Trial on Indictment: the Prosecution Case
D14.41 Stopping the Case before the End of the Trial
In Collins [2007] EWCA Crim 854, the Court of Appeal emphasised once again that the practice of inviting a jury to acquit before the end of the trial has now been 'comprehensively disapproved'. It may be exercised (if at all) only in the most exceptional circumstances. If a trial judge considers that the credibility of key prosecution witnesses has been so completely undermined by cross-examination as to render any reliance on that evidence unsafe, he must himself assume responsibility and stop the case.
D19 Summary Trial
D19.39 Unfitness to Plead in the Context of Summary Proceedings
In CPS v P [2007] EWHC 946 (Admin) the Divisional Court considered some problems that may arise where it is submitted that a defendant lacks a sufficient level of maturity or intellectual capacity to understand and participate effectively in the proceedings. The case in question involved a child defendant, and it is clear that issues of this kind arise most frequently in the youth courts, but many of the same principles will clearly apply mutatis mutandis to summary trials in which an adult defendant's intellectual capacity is in doubt.
Having considered R (P) v Barking Magistrates Court [2002] EWHC 734 (Admin), R (TP) v West London Youth Court [2005] EWHC 2583 and SC v UK [2004] 40 EHRR 10, Smith LJ offered the following general guidance:
51. . . . There can be no doubt that, notwithstanding the fact that the youth court is a creature of statute (like any other magistrates' court) it has an inherent jurisdiction to stay proceedings as an abuse of process at any stage. The jurisdiction is limited to matters directly affecting the fairness of the trial of the particular defendant concerned and does not extend to the wider supervisory jurisdiction for upholding the rule of law, which is vested in the High Court: see R v Horseferry Road Magistrates Court ex parte Bennett [1994] 1 AC 42. However, although the jurisdiction exists, I think that it will be in only exceptional cases that it should be exercised, on the ground of one or more of the capacity issues, before any evidence is heard.
52. Medical evidence such as was put before [the district judge in this case] will rarely provide the whole answer to the question of whether the child ought to be tried for a criminal offence. This is an issue which the court has to decide, not the doctors, although of course the medical evidence may be of great importance. But, the medical evidence must almost always be set in the context of other evidence relating to the child, which may well bear upon the issues of his understanding, mental capacity and ability to participate effectively in a trial . . .
53. Accordingly, it is my view that, in most cases, the medical evidence should be considered as part of the evidence in the case and not as the sole evidence on a freestanding application . . .
54. As was pointed out in the West London case, the court has a duty to keep under continuing review the question of whether the criminal trial ought to continue. If at any stage the court concludes that the child is unable to participate effectively in the trial, it may decide to call a halt. However, the court may consider that it is in the interests of the child that the trial should continue. If the prosecution evidence is weak, there may be no case to answer . . .
55. If the court decides that it should call a halt to the criminal trial on the ground that the child cannot take an effective part in the proceedings, it should then consider whether to switch to a consideration of whether the child has done the acts alleged (the fact-finding process), under the procedure referred to in the Barking case. It is clear since Re H (see above) that the fact that a child cannot take an effective part in the fact-finding process does not infringe his Article 6 rights. That process is part of the protective jurisdiction contemplated by the [Mental Health Act] 1983 and the child's Article 6 rights are not even engaged.
56. The decision as to whether or not to switch to fact-finding is one for the discretion of the court. The court will wish to consider the possibility that (either on the basis of existing medical evidence or further medical evidence) it might be appropriate to make a hospital order. If that possibility exists, the court should usually find the facts. But even if a hospital order seems unlikely, there may be other advantages in continuing to complete the fact- finding process. If the court finds that the child did do the acts alleged, it may be appropriate to alert the local authority to the position with a view to consideration of care proceedings. Although the youth court's findings may not be binding in the context of care proceedings, the fact that those findings have been made might result in the simplification of care proceedings. I consider that proceedings should be stayed as an abuse of process before fact- finding only if no useful purpose at all could be served by finding the facts.
57. If the court decides to find the facts and finds that the defendant did the acts alleged, it would then consider whether to seek further medical evidence with a view to making an order under the MHA 1983. If the court finds that the defendant did not do the acts alleged, the proceedings would be brought to an end by a finding of not guilty.
58. [It was] submitted that there will be a small residuum of cases in which it is clear, before any evidence is called, that the defendant will not be able to participate effectively in a trial. In those circumstances it would be right to stay the proceedings at the outset. I would accept that if the child is so severely impaired that he clearly cannot participate in the trial and if it is clear that there would be no point in finding the facts with a view to making an order under the MHA 1983, there would seem to be little purpose in proceeding. But if there does remain a defence of doli incapax the selfsame reports which reveal incapacity to take part in the trial might well also contain evidence on which to base that defence. Ought not the defendant to have the chance of an acquittal rather than a stay? If I am wrong about the availability of that defence, it would in my view be right to stay proceedings at the outset if the child was clearly so severely impaired as to be unable to participate in the trial and where there is no useful purpose in finding the facts. Thus the residuum of cases which should be stayed at the outset will in any event be very small. I would add that, if proper consultation has taken place before the prosecution is instituted, very few such cases should ever reach the youth court.
D22 Trial of Juveniles
D22.1 Introduction
In CPS v P [2007] EWHC 946 (Admin) (also considered at D19.39) the court referred to the principles laid down in the CDA 1998, s. 37(1) and related provisions, but added:
33. . . . this statutory framework, based as it is on the aim of preventing crime by children and young persons, ought to provide a means by which the relevant agencies can consult and cooperate over the handling of a child who, whether as the result of intellectual disabilities or misconduct or both is getting into trouble, so as to tackle those problems, if possible, without resorting to criminal proceedings.
34. Section 5 of the Children and Young Persons Act 1969 as amended imposes a duty on any person who decides to lay an information in respect of an offence in a case where he has reason to believe that the alleged offender is a young person (including a child) to give notice to the appropriate local authority. Section 9 of that Act requires a local authority who receives notice that such proceedings are being brought to investigate and to make available to the court such information about the home surroundings, school record, health and character of the young person as appears to the authority likely to assist the court.
35. . . . it seems . . . that these provisions, read together with the provisions I have previously cited, offer an opportunity for the relevant authorities to consult about the best way forward in respect of a child who is about to be prosecuted for an offence. It may, particularly in the case of a young child with mental health or disability problems, be thought preferable to proceed by way of civil proceedings seeking a care or supervision order under the Children Act 1989, rather than to embark on a prosecution.
36. If a decision is made to prosecute a child for a criminal offence, the prosecutor and the court ought, I think, to be alive to the possibility that the child might not, for one reason or another be fit to face a criminal trial. . . The prosecutor and court ought also to be alive to the possibility that the child might be doli incapax.
As to the doli incapax point (on which the court was not wholly in agreement), see A3.38.
PART E SENTENCING
E1 Sentencing: General Provisions
E1.2 Sentencing Guidelines
The Court of Appeal has emphasised that a judge's oath to administer justice without fear or favour, affection or ill will extends to imposing what he concludes to be the appropriate sentence, He must of course pay careful regard to sentencing guidelines, whether laid down by the Court of Appeal or by the Sentencing Guidelines Council; but these are only guidelines. In some cases there may be good reason to depart significantly from the guidelines, notably where the facts of the offence in question diminish its seriousness in comparison to the norm, and also where there is particularly powerful personal mitigation. In such circumstances, a judge should not hesitate to impose what he considers to be an appropriate sentence merely because he fears that this might cause the A-G to intervene. A departure from the guidelines, even if it is substantial, is not, of itself, enough to justify the A-G's intervention. The test for intervention is not leniency, but undue leniency. Leniency, where the facts justify it, is to be commended rather than challenged: A-G's Ref (No. 8 of 2007); Krivec [2007] EWCA Crim 922.
E4 Mandatory Life Sentences
E4.1 Murder: Life Imprisonment
The Criminal Justice Act 2003, sch. 21, does not purport to provide an exhaustive list of aggravating features, but rather features which the judge could and should take into account when deciding the minimum term. A murder may involve other aggravating features which can and should be taken into account when setting the minimum term to be served: Smitheman [2007] EWCA Crim 1006.
E6 Minimum Custodial Sentences for Firearms Offences
E6.3 Minimum Custodial Sentences for Firearms Offences
The Firearms (Sentencing) (Transitory Provisions) Order 2007 (SI 2007 No. 1324) modifies the Firearms Act 1968, s. 51A pending the repeal of the sentence of detention in a young offender institution for offenders aged 18 to 20 at the time of conviction. The modifications apply the five-year minimum term for a qualifying offence to offenders aged 21 or over sentenced to imprisonment and to 18 to 20 year olds sentenced to detention in a young offender institution.
E23 Exclusions and Disqualifications
E23.10 Financial Reporting Orders
The Serious Organised Crime and Police Act 2005 (Amendment of Section 76(3)) Order 2007 (SI 2007 No. 1392) amends s. 76 of the 2005 Act so as to add more than 20 offences to the list of offences in respect of which a financial reporting order may be made. The added offences include conspiracy to defraud, false accounting, money laundering offences, drug trafficking offences, offences related to terrorist funding, tax evasion offences and offences of corruption.
PART F EVIDENCE
F11 Admissibility of Previous Verdicts
F11.6 Relevance and Admissibility of Acquittals
Z [2001] 2 AC 483 was considered in Boulton [2007] EWCA Crim 942. At D's trial on charges that included the rape and false imprisonment of his pregnant partner, evidence was admitted, under the Criminal Justice Act 2003, s. 101, from his former girlfriend, E, who made similar accusations of rape. D had however been acquitted of that offence.
It was conceded that E's evidence was not rendered inadmissible merely because of the acquittal, but an issue did arise as to the significance, if any, of that acquittal. The trial judge directed the jury that the earlier acquittal was irrelevant and could not assist them in resolving the issues raised by E's evidence.
The Court of Appeal opined that the better course would have been to have told the jury that the earlier acquittal meant no more than that the jury on that occasion were unsure of the evidence given by E. But if the judge was in error (and the court seems to have stopped short of saying so) it could not have affected the safety of the conviction.
See also the note on Deboussi [2007] EWCA Crim 684 in last month's update at F1.9.
F12 Character Evidence: Evidence of Bad Character of Accused
F12.22 Similar fact Evidence and Acquittals
Z [2001] 2 AC 483 was considered in Boulton [2007] EWCA Crim 942. See F11.6.F19 Inferences from Silence and the Non-disclosure of Evidence
F19.6 Out of Court Silence: Fact Relied Upon
Webber [2004] 1 All ER 770 was followed in Esimu [2007] All ER (D) 272 (Apr), in which it was held that a jury were properly invited to draw inferences under the Criminal Justice and Public Order Act 1994, s. 34, when D failed to offer any explanation to the police as to how his fingerprints came to be found on the false number plates attached to a stolen car, but advanced an explanation at trial, according to which he might have had cause to remove the plates whilst working at a car wash and valeting business.
The Court of Appeal held that the car valeting explanation, although only a theory, was based on alleged facts and that it was open to a jury to draw inferences from D's failure to mention those facts when interviewed under caution. Any alleged fact which was in issue and was put forward as part of the defence case could potentially fall within the scope of s. 34: if the defendant advanced at trial any fact or explanation or account which, if it were true, he could reasonably have been expected to advance earlier, s. 34 was potentially applicable.
Esimu can be contrasted with Nickolson [1999] Crim LR 61 in which D was convicted of indecently assaulting his young stepdaughter, on whose nightdress a small amount of seminal staining had been found. When he gave evidence at the trial D proffered an explanation as to how the semen might have got there other than through sexual abuse (namely that she might have sat in her nightdress on a toilet seat shortly after D had masturbated there) but since he had not mentioned this explanation when questioned the trial judge gave the jury a s. 34 direction. The Court of Appeal held this to be wrong. When he was being interviewed, neither D nor the police were even aware of the staining, and he could not reasonably have been expected to explain a fact of which he was totally unaware.
Furthermore, D's in-court explanation was no more than a theory, a possibility or speculation. He had told the police in interview that he had masturbated in the bathroom after leaving the complainant's bedroom, so it could not be said that he had failed to mention the facts on which the theory was based.
NEW LEGISLATION
Serious Organised Crime and Police Act 2005 (Designated Sites under Section 128) Order 2007 (SI 2007 No. 930)
This Order designates 16 further sites for the purposes of s. 128 (summary offence of entering or being on any designated site as a trespasser).
Firearms (Sentencing) (Transitory Provisions) Order 2007 (SI 2007 No. 1324)
Section 51A of the Firearms Act 1968 provides for minimum sentences to be imposed for certain offences under that Act. Section 51A provides that an offender aged 18 or over when convicted of a qualifying offence for which a sentence of imprisonment is imposed will receive a minimum term of five years. This Order modifies s. 51A pending the repeal of the sentence of detention in a young offender institution for offenders aged 18 to 20 at the time of conviction. The modifications apply the five-year minimum term for a qualifying offence to offenders aged 21 or over sentenced to imprisonment and to 18 to 20 year olds sentenced to detention in a young offender institution.
Serious Organised Crime and Police Act 2005 (Designated Sites under Section 128) (Amendment) Order 2007 (SI 2007 No. 1387)
This Order amends the principal Order (SI 2007 No. 930) by adding a new map of one prohibited area (Chequers).
Serious Organised Crime and Police Act 2005 (Amendment of Section 76(3)) Order 2007 (SI 2007 No. 1392)
This Order amends s. 76 of the 2005 Act so as to add more than 20 offences to the list of offences in respect of which a financial reporting order may be made. The added offences include conspiracy to defraud, false accounting, money laundering offences, drug trafficking offences, offences related to terrorist funding, tax evasion offences and offences of corruption.
About this book
Price, bibliographic details, and more information on the book