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Blackstone's Criminal Practice 2007

Updates

November 2006

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Blackstone's Criminal Practice 2007

November 2006

November 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 November update primarily covers developments occurring or reported in October 2006.

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

PART A GENERAL PRINCIPLES OF CRIMINAL LAW

A2 Mens Rea

A2.8 Wilfully

Sheppard [1980] 3 All ER 899 was considered in W [2006] All ER (D) 194 (Oct). The court considered it to be settled law that 'wilfully' in the Children and Young Persons Act 1933, s. 1(1) was a word that carried a pejorative meaning. The primary meaning of 'wilful' was 'deliberate' but it may also include recklessness. Thus, a parent who knows that his child needs medical care, but deliberately refrains from obtaining it, acts wilfully in this sense. A parent who fails to provide necessary medical care for his child because he does not care whether it is needed will equally be guilty. But if a parent, whether through personal inadequacy or stupidity or both, genuinely fails to appreciate that his child needs medical care, then the parent does not act wilfully and is not guilty.

A4 Strict and Vicarious Liability

A4.2 Tests for Strict Liability

The general principles governing the identification of offences of strict liability were examined by the Courts-Martial Appeals Court in Jackson [2006] EWCA Crim 2380, in which the court upheld the appellant's conviction for an offence of unlawful low flying, contrary to the Air Force Act 1951, s. 51, which provides:

'Any person subject to air-force law who, being the pilot of one of Her Majesty's aircraft, flies it at a height less than such height as may be provided by any regulations issued under the authority of the Defence Council . . . except (a) while taking off or alighting, or (b) in such other circumstances as may be so provided, shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two years or any less punishment provided by this Act'.

The appellant, an RAF officer, struck a floodlight tower with his Jaguar aircraft when making an illegal low altitude 'farewell pass' over the airfield at RAF Akrotiri in Cyprus. He pleaded guilty to another charge involving negligence, but in respect of the low flying offence he argued that his altimeter had been faulty, and that mens rea ought to have been considered an essential element of the offence, particularly given that it carried a potential sentence of two years' imprisonment.

Rejecting this argument, the court fully agreed with the following observations of the judge-advocate at the trial:

Low flying creates a serious hazard and risk of serious danger to person and property and one where the strictest possible standards must be imposed to ensure the avoidance of such danger occurring.

When Parliament legislated in the field of civil aviation some years after the enactment of the it created an offence of Low Flying which was an offence of strict liability.

In other sections of the Air Force Act 1955 which are concerned with flying elements of mens rea are specifically imported by those sections.

The provisions of Section 51 of the Air Force Act 1955 are not unique in imposing the sanction of imprisonment for the commission of an offence of strict liability.

Indeed the case of Gammon provides an example of a situation where even more serious penalties than those available under section 51 did not prevent an offence of strict liability being upheld.

Those entrusted with the responsibility of handling lethal equipment of the nature which is entrusted to service personnel cannot complain if they are made subject to more severe penalties than their civilian counterparts - it is a responsibility which goes with the privilege of serving in the Armed Forces.

The training which such personnel receive and general common sense dictate that pilots flying at extremely low levels should have a very good idea indeed of the level at which they are flying whether or not their instruments are faulty - particularly if they are actually flying below the top of some potential hazard on the ground. If an instrument fault causes an otherwise blameless pilot to fly below the prescribed level, then no doubt prosecution would be brought.

The court then emphasised the importance of Newton hearings or other methods by which a court may determine the actual level of a defendant's culpability. Recently the Court of Appeal has addressed similar issues rising out of the Sexual Offences Act 2003. See G [2006] EWCA Crim 821 and the cases there discussed.

PART B OFFENCES

B1 Homicide and Related Offences

B1.33 Sentencing Guidelines: Involuntary Manslaughter

In cases involving work-place fatalities caused by deliberate breaches of safety regulations by an offender who is an employer, it is not appropriate to suspend a prison sentence merely for the purposes of preventing the collapse of the offender's business. Such a course would serve as no incentive to ensure that health and safety obligations were properly complied with; and it is imperative that such obligations are strictly observed: A-G's Ref (No. 89 of 2006); Shaw [2006] EWCA Crim 2570.

B2 Non-fatal Offences against the Person

B2.35 Wounding or Inflicting Grievous Bodily Harm: Sentencing Guidelines

In P (SJ) [2006] EWCA Crim 2599, the defendant began an unprotected sexual relationship with a man, without informing him that she had been diagnosed as HIV positive. When he became infected, she agreed to be tested, but led him to believe to his great distress that he had infected her. When the truth was discovered, she pleaded guilty to the malicious infliction of GBH and was sentenced to 32 months' imprisonment.

The Court of Appeal heard representations from the Terrence Higgins Trust to the effect that deterrent sentences in cases such as this had adverse effects on the willingness of people who suspected that they were HIV positive to seek treatment or to undergo testing for the virus, but concluded that the courts had a duty to deter those who knew that they were HIV positive from recklessly transmitting the virus. There were serious aggravating features in this case, including the defendant's willingness to let her partner assume the blame for her condition when the opposite was true. The sentence was upheld.

B2.37 Wounding or Inflicting Grievous Bodily Harm: Elements

A novel issue concerning the essential elements of the offence under the Offences Against the Person Act 1861, s. 20, was considered but not entirely resolved by the Court of Appeal in Brady [2006] EWCA Crim 2413.The accused in this case had consumed a significant quantity of alcohol at a nightclub. As he sat down on a low railing on the first floor gallery above the dance floor, he lost his balance and fell, landing on a girl below, causing crippling injuries to her back.

Clearly he was to blame for her injuries, but the issue was where he could be said to have inflicted them 'maliciously'. Maliciousness requires either an intention to cause some injury or recklessness as to whether some such injury might be caused. This ordinarily means recklessness of the subjective or Cunningham variety, as defined by the House of Lords in G [2003] UKHL 50. But in this case, the appellant's voluntary intoxication might have invited a direction to the jury based on the Majewski rule; i.e. a direction that they could consider the accused to have acted maliciously if they were satisfied that he would have recognised the risk had he not been drunk (see to that effect the Judicial Studies Board's Specimen Direction No. 52B).

Had the accused deliberately jumped onto the people below, his drunken inability to appreciate the risk of injury would undoubtedly have brought him within the Majewski rule. But here he had fallen accidentally. His only deliberate act was to sit on the rail, and this potentially distinguished his case from previous authorities. In giving leave to appeal, the single judge (Holland J) had questioned whether or not the accused could properly have been convicted:

absent proof of an actus reus appropriate to a section 20 offence that is, absent proof of deliberate, non-accidental conduct on the part of the accused that inflicted grievous bodily harm upon the victim

The Court of Appeal were critical of counsel for failing fully to explore the authorities on maliciousness, and the court hesitated to pronounce on the issue. Hallett LJ said (at [24] to [25]):

Given the way in which the appeal was argued before us, we confess we have not found the question an easy one to answer. As we attempted to review the law ourselves, we understood the concern of the single judge. . .

Given the possible ramifications of a judgment on this point, we are reluctant to come to a concluded view, in the absence of fuller argument. If it assists, however, we are prepared to give our preliminary view, namely that, subject to the question of mens rea, it may have been open to the jury in this case to convict the appellant 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 the appellant 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. We would not be inclined to accept, therefore, [counsel's] submission that, because it was the unintentional fall rather than the deliberate act which, in fact, caused [the victim's] injuries, this broke the chain of causation. The one led inevitably to the other.

In the event, the court considered that the appeal could be allowed on the basis of defects in the trial judge's directions to the jury. On the directions given, one could not rule out the possibility that the jury had convicted the appellant merely because his stupidity had led to the victim's injuries. The conviction therefore was unsafe.

B2.103 Child Cruelty: Mens Rea

B3 Sexual Offences

B3.6 Rape: Sentencing Guidelines

The Millberry guidelines, Lang [2005] EWCA Crim 2864 and the provisions of the Criminal Justice Act 2003, s. 255 were considered in Beazley [2006] All ER (D) 175 (Oct). The Court of Appeal held that s. 255, where applicable, overrides the normal sentencing guidelines. If a person aged 18 or more is convicted of a serious offence, the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences, the offence carries a potential life sentence (as does rape) and the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, the court must then impose a sentence of imprisonment for life, even if this sentence would not otherwise have been indicated by the appropriate guidelines.

B3.9 Rape: Mens Rea

The Court of Appeal in A-G's Ref (No. 79 of 2006); Whitta [2006] EWCA Crim 2626 has briefly examined, but not finally decided, a difficult mens rea issue relating to the concept of 'reasonable belief' in the complainant's consent. The accused in this case appears to have made a mistake as to the identity of a woman sleeping in a darkened room. He thought it was a young woman, S, whom he had met at a party and who he had good reason to believe was willing to have sex with him that night. It was however C, a 51-year-old woman who was sleeping off the effects of the 10 vodkas she had consumed that night. He got into bed with her and began to touch her, briefly penetrating her with his finger (or possibly his penis, although this was not proved) before realising his mistake, apologising and running from the room.

The trial judge ruled that in considering whether the accused had reasonably believed C consented to the penetration (either for the purposes of rape or for the purposes of the s. 2 offence of assault by penetration), it was irrelevant whether the defendant reasonably believed that she was S or that S would have consented. He said:

There is no scope of transferred consent or reasonable belief in such consent and that he cannot rely on mistaken identity even in the light of section 1 2) of the Sexual Offences Act which requires regard to be had to all circumstances.

The Court of Appeal noted that the case before them was a sentencing reference by the Attorney-General, and not an appeal against the ruling or the s. 2 conviction that followed that ruling. They did however make some observations (obiter) doubting the correctness of the ruling. Hooper LJ said:

The effect of the Sexual Offences Act 2003, in particular the provisions of sections 1(1)(c), 2(1)(d) and 3(1)(d), is to make the offences of rape, assault by penetration and sexual assault crimes that can be committed negligently. [Counsel] sought to support the judge's ruling by saying that the judge had decided that the offender's belief was not reasonable. She submitted that the offender had not taken the necessary care to ascertain who was in the bed and that he had committed the offence of sexual penetration "by omission".

We disagree with this analysis of the ruling. The effect of the judge's ruling is that it is not a defence to a charge under sections 1 or 2 of the SOA if the defendant has made a mistake, however reasonable, as to the identity of the person to whom the sexual activity is directed. In his ruling the judge did not decide that the offender's belief was not reasonable or that he had omitted to take the necessary care. He decided that the offender's belief was irrelevant because he did not believe that C consented.

If the ruling is right, then the three offences are offences of strict responsibility as far as and only as far as the identity of the complainant is concerned. This being so, the judge must determine the level of the defendant's culpability, if any, in order to determine the appropriate sentence.

We note in passing that a possible alternative way of dealing with this very rare set of circumstances would be to hold that the offence is committed if a reasonable (and therefore sober) person would have realised that the person being penetrated or sexually touched was not the person whom the defendant thought he was consensually penetrating or touching.

The court was, with respect, right to cast doubt on the trial judge's ruling. There is no evidence to suggest that Parliament ever intended to introduce any such element of strict liability. If the relevant sections make no express provision for "transferred consent or reasonable belief in such consent", it is almost certainly because the draftsman failed to envisage or provide for a situation such as the one that occurred in this case. The Court of Appeal's alternative approach (as suggested at para [15]) is much to be preferred.

As to the sentencing issue, see B3.18 below.

B3.14 Rape: Non-disclosure of STDs and Consent

Dica [2004] EWCA Crim 1103 was followed in B [2006] All ER (D) 173 (Oct). The Court of Appeal held that the failure of the accused to disclose his HIV status (or a fortiori any other STD infection) to a person with whom he has sexual intercourse is not relevant to the issue of consent to sexual activity within the meaning of the Sexual Offences Act 2003, s. 74. The Act, said the court, did not expressly concern itself with the full range of possible deceptions other than those identified in s. 76, let alone any implied deception arising from the failure to disclose HIV status.

With respect, the concept of consent in criminal cases (sexual and non-fatal) remains plagued by contradictions and may at some point require clarification from the House of Lords.

As to sentencing in cases under the Offences Against the Person Act 1861 involving liability for transmitting HIV, see P(SJ) [2006] EWCA Crim 2599 (B2.35 above).

B3.18 Assault by Penetration: Sentencing

The facts of A-G's Ref (No. 79 of 2006); Whitta [2006] EWCA Crim 2626 are noted at B3.9. Given the extraordinary circumstances, the Court of Appeal firmly rejected an astonishing submission by counsel for the Attorney-General that the accused's failure to ascertain the true identity of the woman in the bed merited a substantial prison sentence, even on a guilty plea. Hooper LJ said:

On the basis that the offender would not have been committing any offence if S had been in the bed and that a reasonable (and therefore sober) person would have realised that the person in the bed was not S, what is the proper sentence? It cannot possibly be the four years suggested by counsel. That is the appropriate starting point for what can be called "the normal case". This is far from the normal case. All we have to decide is whether the community sentence [namely a supervision order for 3 years, with a requirement that he attend a sexual offenders group work programme] is unduly lenient. When the other mitigating factors are taken into account, such as the offender's good character, his immediate apology and withdrawal as well as his sense of shame and guilty plea, we conclude the sentence is not arguably unduly lenient.

B3.226 Administering a Substance with Intent: Sentencing

In Wright [2006] EWCA Crim 2672 the Court of Appeal considered the proper approach to be taken in sentencing for offences contrary to the Sexual Offences Act 2003, s. 61 (administering a substance with intention of engaging in sexual activity). The offender, a nightclub doorman, tricked the complainant into drinking vodka laced with 'GBL', a derivative of 'GHB', which would cause amnesia and sleep inducement. She collapsed and appeared to have a fit, but he did not call an ambulance or otherwise assist her. She was taken to hospital, unconscious and with shallow breathing, depression of the central nervous system and low blood pressure.

The court held that a sentence with a strong deterrent element was called for, particularly in view of the breach of trust involved and his behaviour when the complainant fell ill. A sentence of five years' imprisonment was upheld.

A similar sentence was imposed in Hakki [2005] EWCA Crim 1509 where Rohypnol was administered in order to facilitate theft.

B3.277 Indecent Photographs of Children

Dooley [2006] 1 WLR 775, [2005] EWCA Crim 3093 was distinguished in Price [2006] All ER (D) 238 (Oct), in which the defendant, a primary schoolteacher, handed a colleague a rewritable CD, apparently without realising that he had previously copied files containing indecent images or pseudo-photos of children onto that disc. Some of these were of pupils at his school. He was charged with making and distributing these images, which were shown to have been made on his computer. The judge directed the jury that in respect of the alleged distribution it was not necessary for the prosecution to prove that the defendant knew the CD contained indecent images when he handed it to his colleague.

The Court of Appeal agreed. The Protection of Children Act 1978, s 1(1)(b) created an offence of strict liability. The defences provided by s. 1(4) made sense only on that basis. The fact that he may not have intended to distribute the images went to the gravity of the offences, and did not amount to a defence.

B5 Deception Fraud and Blackmail

B5.1 Deception and Fraud: Old and New Law

The Fraud Bill received the Royal Assent on 8 November and thus became the Fraud Act 2006. Its main provisions will come into force on dates that have yet to be appointed.

B5.92 Fraud Bill

The Fraud Bill received the Royal Assent on 8 November and thus became the Fraud Act 2006. Its main provisions will come into force on dates that have yet to be appointed.

B10 Terrorism, Piracy and Hijacking

B10.66 United Nations Measures

The Terrorism (United Nations Measures) Order 2006 (SI 2006 No. 2657) revokes and replaces the Order of 2001. Like the 2001 Order, it gives effect to Resolution 1373(2001) adopted by the Security Council of the United Nations on 28th September 2001 relating to terrorism and resolution 1453(2002) adopted on 20th December 2002 relating to humanitarian exemptions and provides for enforcement of Regulation (EC) 2580/2001 on specific measures directed at certain persons and entities with a view to combating terrorism. The 2006 Order includes increased Treasury powers. The Order's principal provisions are as follows.

Article 4 gives the Treasury power to give a direction to designate a person for the purposes of the Order if one of a number of specified conditions is fulfilled in respect of the person. The conditions are that the Treasury have reasonable grounds to suspect that the person is or may be (a) a person who commits, attempts to commit, participates in or facilitates the commission of acts of terrorism; (b) a person named in the Council Decision; (c) a person owned or controlled, directly or indirectly, by a designated person; or (d) a person acting on behalf of or at the direction of a designated person. Article 4 also gives power for the Treasury to specify in the direction that the prohibition in art. 8(1) does not apply in respect of the person identified in the direction.
Article 5 makes further provision about the Treasury's directions, including a requirement for the Treasury to take the steps that they consider appropriate, to publicise the direction or to inform only certain persons and to notify the person identified in the direction. It also includes provision about the manner in which a direction has effect and appeals.
Article 6 gives the Treasury power to specify that information contained in a direction is to be treated as confidential and imposes a prohibition on disclosing such information except with lawful authority. It is a criminal offence to contravene this prohibition and a court may grant an injunction to prevent a breach.
Article 7 prohibits any dealing with funds, financial assets and economic resources of anyone who commits, attempts to commit, participates in or facilitates the commission of acts of terrorism; designated persons; anyone owned or controlled by them or anyone acting on their behalf of or at their direction.
Article 8 prohibits making funds, financial assets, economic resources or financial services available to anyone in respect of whom art. 7 applies.
Article 10 makes it a criminal offence to circumvent the prohibitions or to facilitate the commission of an offence relating to a prohibition.
Article 11 provides a licensing procedure to enable, for humanitarian and other purposes, certain acts to be exempted from the prohibitions.
Article 16 gives the Treasury power to delegate its functions under the Order.
Article 18 confirms that the provisions of the Order apply to the Crown but that, in the event of a contravention, the Crown is not criminally liable.

PART C ROAD TRAFFIC OFFENCES

C3 Offences Relating to Driving Triable on Indictment

C3.13 Causing Death by Dangerous Driving: Sentencing

Cooksley [2003] EWCA Crim 996 was considered in Buckland [2006] EWCA Crim 2516, in which a sentence of nine years' imprisonment (reduced from 10 years on the basis of a very late guilty plea) was upheld in respect of a prolonged case of deliberately dangerous driving that fell into the most serious category and was aggravated by drugs and by leading the police in a high-speed pursuit that became so hazardous that it had to be abandoned.

The Court of Appeal recognised that it was not always appropriate to break down the individual characteristics of the driving in question, and that it was the overall character and effect of the driving that determined where in the spectrum the offence fell.

PART D PROCEDURE

D2 Courts, Judges and Parties

D2.99 Open Justice: Freedom of the Media to Report Court Proceedings

The Contempt of Court Act 1981, s. 4, was examined in Bhatti [2006] EWCA crim 2692 (Admin). One defendant in a case involving allegations of Islamic terrorism and conspiracy to murder entered a plea of guilty and was sentenced early in November 2006. His former co-defendants pleaded not guilty and are not expected to face trial before April 2007. The co-defendants sought and initially obtained an order preventing the publication by the media of any details concerning the first defendant's sentencing hearing, lest it should prejudice their own trial in April.

The Court of Appeal allowed an appeal by media organisations against this order, and the sentencing of the first defendant, together with some details of the case against him, have been widely reported. The court was satisfied that fair factual reporting in this case would not unfairly prejudice the later trial. The power under s. 4(2) to restrict fair and accurate reporting is not to be used merely because it is feared that there might otherwise be some improper and prejudicial comment. Responsibility for ensuring that media coverage of such a case does not prejudice the course of a later trial rests on those responsible for that publicity. Broadcasters and newspaper editors should be trusted to exercise proper judgment. The risk of being in contempt of court is one which no responsible editor would wish to run. The court also relied on their view that juries have a profound and passionate belief in the right of a defendant to be given a fair trial, and can be trusted to act upon a direction to focus on the evidence before them, ignoring anything they have heard outside.

D8 Disclosure

D8.10 Prosecution Disclosure

Hadley and others [2006] EWCA Crim 2544 considers both when prosecution non-disclosure will result in a conviction being unsafe and in what circumstances and according to what criteria a retrial will be ordered (see D24.54 below).

This was a drugs case. The prosecution failed to disclose relevant material because it failed to view relevant videos and instead relied on summaries. As a result there was a failure to disclose material video recordings relating to surveillance of the appellant's business premises. The Court accepted that it must, in deciding whether the conviction was unsafe, determine first whether the material should have been disclosed and then whether the failure to disclose it renders the conviction unsafe. It does not necessarily follow that because the first question is answered in the affirmative the second must also be so answered. The court will not regard a conviction as unsafe if the non-disclosure can be said to be insignificant in relation to any real issue in the case (Alibha [2004] EWCA Crim 681 followed). Individual items of evidence must be seen in the context of other evidence in the case.

The Court accepts that an appellant need not show that disclosure would have affected the outcome of the proceedings. It is enough for him to show that it was capable of affecting the jury's mind, not that it must have done so. Given the importance of disclosure in ensuring a fair trial, a court is likely to be slow to accept that the safety of a conviction is unaffected where a substantial volume of disclosable material has been withheld from the defence.

[Case noted by Leonard Leigh]

D8.19 Defence Disclosure

The Criminal Procedure (Amendment No. 2) Rules 2006 (SI 2006 No. 2636) amend the Criminal Procedure Rules 2005 and, in particular, affect expert evidence. The new rules on expert evidence will affect defence disclosure under the Criminal Procedure and Investigations Act 1996, s. 6D.

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

D13.31 Expert Evidence

The Criminal Procedure (Amendment No. 2) Rules 2006 (SI 2006 No. 2636) amend the Criminal Procedure Rules 2005 and, in particular, affect expert evidence. There are amendments of r. 24.1 as well as a wholly new set of rules on expert evidence in part 33.

D13.42 Attendance of Witnesses

The Divisional Court held in R (TH) v Wood Green Crown Court [2006] EWHC 2683 (Admin) that, by reason of the Supreme Court Act 1981, s. 29(3), no application for judicial review may be entertained in respect of a Crown Court judge's decision to remand a witness in custody or on bail under the Criminal Procedure (Attendance of Witnesses) Act 1965, s. 4(3), when he has been arrested and brought before the court pursuant to a witness summons in proceedings on indictment. This need not leave such a witness without remedy against unjust treatment, because habeas corpus remains an available remedy as is a damages claim under the Human Rights Act 1998.

The power to remand in custody pursuant to s. 4(3) continues for as long as it is anticipated that the witness might be required to give evidence, and this may involve detention for days or weeks where there is a real possibility that either side might wish to recall the witness later in the trial.

D15 Trial on Indictment: The Defence Case

D15.10 Expert Evidence

D24 Appeal to the Court of Appeal following Trial on Indictment

D24.54 Power to Order Retrial

Hadley and others [2006] EWCA Crim 2544, was a drugs case involving a dispute about proper disclosure (see D8.10) where the court went on to consider in detail when it is appropriate to order a retrial. In deciding whether to order a retrial, the Court will have regard to the gravity of the offence. Likely delay in bringing the matter to a fresh hearing while regrettable would not, in a case where there are unlikely to be difficulties in putting the evidence before a fresh jury, persuade the Court that it would be unjust to order a retrial. The Court will not refuse a retrial simply because the prosecution may be able to improve its case: the purpose of the trial process is to reach a correct decision, not one that is the result of procedural or tactical shortcomings on either side. The Court's focus is on whether there was failure to disclose, not why. It follows that arguments essentially based on abuse of process are unlikely to prevail. Here, looking at the question whether it would be in the wider interests of justice for there to be a retrial, the Court notes that this is not a case where the prosecution's conduct dictated that no prosecution should have been brought (Mullen [1992] 2 Cr App R 143 distinguished).

Lessons, the court concluded, had been learned in this case and the interests of justice would not be served by refusing to order a re-trial simply to make a point.

[Case noted by Leonard Leigh]

D25 Procedure on Appeal to the Court of Appeal

D25.1 The Rules

The Criminal Procedure (Amendment No. 2) Rules 2006 (SI 2006 No. 2636) amend the Criminal Procedure Rules 2005; in particular, they amend part 68 to extend it to govern the procedure on an appeal under the Serious Organised Crime and Police Act 2005, s. 74(8) against a sentence review decision.

D30 Extradition

D30.13 Part 2 of the Extradition Act 2003

The Police and Justice Act 2006, s. 43 includes a power for a resolution to be passed by Parliament which would have the effect of removing the United States of America from the list of designated countries in the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. Although the power to make the resolution is technically in force from 8 November 2006, that power is not exercisable within the period of 12 months commencing with that date.

PART E SENTENCING

E1 Sentencing: General Provisions

In R (A) v Governor of Huntercombe Young Offender Institution [2006] EWHC 2544 (Admin) (noted below at E9.10) Stanley Burnton J made this scathing observation on the absurdly complex state to which sentencing laws have now been reduced - complexity which in this case had caused the Court of Appeal itself to fall into error:

Over the last nine years, there has been a profusion of Acts of Parliament relating to penal sentencing. Much of it has had the objective of limiting or removing the discretion of the sentencing court to impose the sentence it considers appropriate. Since the affairs of man are of enormous, if not infinite, variety, such measures risk compelling a court to pass a sentence which it considers inappropriate to the individual offender for the particular crime he has committed. Moreover, the plethora of mandatory provisions cannot be kept in mind at all times by those advising or representing a defendant, or indeed by a sentencing judge. Indeed, even the Home Office seems in some instances to be unaware that there are conflicting provisions of its own creation: see CPS v South East Surrey Youth Court [2005] EWHC 2929 (Admin). Inevitably, mistakes and misunderstandings happen, and judges find themselves faced with a situation in which they consider injustice may be done.

E1.11 General Mitigating Factors

In A-G's Ref (No. 73 of 2006), R v M [2006] All ER (D) 106 (Oct), the Court of Appeal recognised that a sentencing judge may on occasion, and in the right case, temper justice with mercy. In this case, an 81-year-old offender was spared a prison sentence in respect of a series of sexual offences against children. The offences involved touching their genitals over clothing. There was compelling mitigation: apart from his age, the offender was in poor health, had chosen to stop his offending some years before, and had entered a guilty plea at the first opportunity.

A community order had been imposed with the requirement of supervision and attendance at a sex offender programme, together with a sexual offences prevention order (prohibiting him from having unsupervised contact with a child under the age of 16).

In rejecting the Attorney-General's submission that this sentence was unduly lenient, the court observed that sentencing was an art rather than a science; that the trial judge was particularly well placed to assess the weight to be given to various competing considerations; and that leniency was not in itself a vice. The proposition that mercy should season justice was as soundly based in law as it was in literature.

E2 Custodial Sentences: General Provisions

E2.9 Relevance to Sentence of Early Release Provisions

In Ahmet [2006] EWCA Crim 2693 the Court of Appeal held that where an offender falls to be sentenced for offences committed both before and after 4 April 2005 and must therefore be sentenced by reference to two different regimes, the sentencing judge must have regard to the different early release provisions applicable in each case. The offender would be eligible for early release after serving two-thirds of his allotted sentence under the old regime, but after serving just half of that sentence under the new one.

It would generally be preferable to pass sentence on the later offences by reference to the new regime, whilst imposing no separate penalty for the earlier offences, albeit that might not be possible if the later offences were less serious than the earlier ones.

E4 Mandatory Life Sentences

E4.1 Murder: Life Imprisonment

The phrase 'murder for gain' in the Criminal Justice Act 2003, sch. 21, para. 5(2)(c) is directed to the purpose or motive for the murder, or at least of or for the activity that led to the victim's death. It is not restricted to those who made a living out of killing, but also applies to domestic murders committed in order to solve debt problems: Re Bingham (application under para 3 of Sch 22 to the Criminal Justice Act 2003) [2006] EWHC 2591(QB), per Andrew Smith J.

E5 Custodial Sentences for Dangerous Offenders : CJA 2003

E5.5 Life Sentence or Imprisonment for Public Protection

Lang [2005] EWCA Crim 2864 and the provisions of the Criminal Justice Act 2003, s. 255 were considered in Beazley [2006] All ER (D) 175 (Oct). The Court of Appeal held that s. 255, where applicable, overrides the normal sentencing guidelines. If a person aged 18 or more is convicted of a serious offence, the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences, the offence carries a potential life sentence and the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, the court must impose a sentence of imprisonment for life, even if this sentence would not otherwise have been indicated by the appropriate sentencing guidelines.

E5.11 Detention for Life or Detention for Public Protection: Assessment of Dangerousness

The guidance given in Lang [2005] EWCA Crim 2864 was considered at length by the Court of Appeal in Johnson [2006] EWCA Crim 2486. Noting that Rose LJ's interpretation of the Criminal Justice Act 2003 in Lang does not purport to be definitive and ought not to be construed as if it were part of the statute itself, the court in Johnson set out to "address some of the areas of potential misunderstanding arising from Lang, in order to explain and amplify its guidance." Sir Igor Judge P nevertheless emphasises that, "nothing in this judgment is intended to undermine the guidance provided by Lang".

In paras [3] to [11] the court then makes a number of points of general application:

A sentence [imposed under the CJA 2003, ss 224-229] is concerned with future risk and public protection. Although punitive in its effect . . . it does not represent punishment for past offending.

It is a prerequisite to the sentence that the offender has been convicted of a "specified offence", one of 153 categories of violent or sexual offences listed in Parts 1 or 2 of Schedule 15 of the 2003 Act. Some specified offences are, and some are not serious offences for the purposes of section 224. Where, in the judgment of the court, there is a significant risk that the offender will commit further specified (but not necessarily serious) offences, and that the consequence of any such offence would be serious harm ("death or serious personal injury, whether physical or psychological") to members of the public, . . . he is to be regarded as a dangerous offender. . . . [The court is then] required to impose either a sentence of life imprisonment or imprisonment for public protection. The effect of sections 225(1) and (3) is that the court is left with no alternative.

It is not a prerequisite to a finding of dangerousness that the offender should be an individual with previous convictions. A man of good character may properly qualify for this sentence.

Just as the absence of previous convictions does not preclude a finding of dangerousness, the existence of previous convictions for specified offences does not compel such a finding. There is a presumption that it does so, which may be rebutted. The sentencer is entitled to conclude that, notwithstanding the statutory assumption, the offender with previous convictions, even for specified offences, does not necessarily satisfy the requirements of dangerousness.

If a finding of dangerousness can be made against an offender without previous specified convictions, it also follows that previous offences, not in fact specified for the purposes of section 229, are not disqualified from consideration. Thus . . . a pattern of minor previous offences of gradually escalating seriousness may be significant. . . .

Where the facts of the instant offence, or indeed any specified offences for the purposes of section 229(3) are examined, it may emerge that no harm actually occurred. That may be advantageous to the offender, and some of the cases examined in Lang exemplify the point. Another such example is Isa [[2005] EWCA Crim 3330]. On the other hand the absence of harm may be entirely fortuitous. . . . It does not automatically follow from the absence of actual harm caused by the offender to date, that the risk that he will cause serious harm in the future is negligible.

Nothing in the decision in Shaffi [2006] EWCA Crim 418, which was relied on before us, suggests the contrary. . . . Shaffi is not authority for the proposition that as a matter of law offences which did not result in harm to the victim should be treated as irrelevant. Indeed if that is what Shaffi decided, it would, in effect, have re-written the statute.

We considered arguments based on the inadequacy, suggestibility, or vulnerability of the offender, and how these and similar characteristics may bear on dangerousness. Such characteristics may serve to mitigate the offender's culpability. In the final analysis however they may also serve to produce or reinforce the conclusion that the offender is dangerous. . . . As experience shows, aberrant moments may be productive of catastrophe. The sentencer is right to be alert to such risks of aberrant moments in the future, and their consequences.
In Lang, Rose LJ suggested that the prosecution should be in a position to describe the facts of previous specified offences. This is plainly desirable . . . but not always practicable. There is no reason why the prosecution's failure to comply with this good practice, even when it can and should, should either make an adjournment obligatory, or indeed preclude the imposition of the sentence, when appropriate. . . . failure to comply with best practice on this point should be discouraged, but it does not normally preclude the imposition of the sentence.

It is not obligatory for the sentencer to spell out all the details of the earlier specified offences. To the extent that a judge is minded to rely upon a disputed fact in reaching a finding of dangerousness, he should not rely on that fact unless the dispute can fairly be resolved adversely to the defendant. In the end, the requirement is that the sentencing remarks should explain the reasoning which has led the sentencer to the conclusion.

Judge P then adds, 'at the risk of stating the obvious':

This court will not normally interfere with the conclusions reached by a sentencer who has accurately identified the relevant principles, and applied his mind to the relevant facts. We cannot too strongly emphasise that the question to be addressed in this court is not whether it is possible to discover some words used by the sentencer which may be inconsistent with the precise language used in Lang, or indeed some failure on his part to deploy identical language to that used in Lang, but whether the imposition of the sentence was manifestly excessive or wrong in principle. Notwithstanding the "labyrinthine" provisions of ss 224-229, and the guidance offered by Lang, these essential principles are not affected. They apply with equal force to References by HM Attorney General. In particular,

In cases to which s 229(3) applies, where the sentencer has applied the statutory assumption, to succeed the appellant should demonstrate that it was unreasonable not to disapply it. Equally, where the Attorney General has referred such a case because the sentencer has decided to disapply the assumption, the Reference will not succeed unless it is shown that the decision was one which the sentencer could not properly have reached.

This court is normally not assisted by reference to previous individual cases where there appears to be some similarity with the instant case. We hesitate to remind advocates that individual sentencing decisions are fact specific, and that it is rare for reports of sentencing cases to provide guidance about principle, or indeed to treat all the details of the information before the court which are no more than summarised.

E9 Detention and Custody of Offenders under 21

E9.10 Detention and Training Orders

The complex provisions of the Powers of Criminal Courts (Sentencing) Act 2000, ss. 101 and 102 were examined by Stanley Burnton J in R (A) v Governor of Huntercombe Young Offender Institution [2006] EWHC 2544 (Admin).

The Court of Appeal had previously created a problem in this case by varying the claimant's original DTO from one of thee years to one of 18 months, 'less 43 days spent on remand.' The last part of this order (which would, if followed, have resulted in his immediate release) was in fact unlawful, because s. 101(1) permits only orders of 4, 6, 8, 10, 12, 18 or 24 months; and although s. 101(8) (see E9.12) requires the period of any remand in custody to be taken into account in determining the term of the order, that period cannot be taken into account in determining the effect of the order.

When the Court of Appeal's error was discovered (which was when the claimant's parents arrived to collect him from detention), the court at once faxed a recommendation (but not an order) to the governor that he be released "under all powers available to the Prison Service". The Prison Service eventually decided that they had no power to do so, and that the Secretary of State had no power to order release under s. 102 at any time other than exactly one month or two months before the usual release point, in accordance with s. 102(4)(b).

Stanley Burnton J upheld this strict interpretation of s. 102(4)(b), and rejected arguments that the inconvenience caused to the claimant's parents amounted to 'exceptional circumstances' such as might justify early release on compassionate grounds under s. 102(3). As to the mistake by the Court of Appeal, whether such a mistake amounts to an exceptional circumstance will depend on the precise facts. In his lordship's view, such a mistake will not ordinarily amount to an exceptional circumstance, because of the increasing risk of such errors under today's bewilderingly complex sentencing rules. But he allowed the claimant's application for judicial review on the basis of other exceptional circumstances: notably because, but for a delay in the hearing of his original appeal, the Secretary of State would have been able to exercise his power to order early release under s. 102(4)(b), and because the Prison Service had intimated that they would act on any written recommendation from the Court of Appeal, only to reject it when it was made.

E14 Absolute and Conditional Discharges

E14.6 Limited Effect of Conviction on the Grant of Absolute or Conditional Discharge

The relationship between the Powers of Criminal Courts (Sentencing) Act 2000, s. 14, and the Rehabilitation of Offenders Act 1974, s. 1(4), was considered by the Court of Appeal in Patel (application under s 58 of the Criminal Justice Act 2003) [2006] EWCA Crim 2689. The defendant applied for a job in the police. She completed an application form in which she was asked 'Have you ever been convicted of any offence, including motoring (but not parking) offences?' She answered, 'No'.

It was then discovered that she had in fact been convicted of theft nine years before and she was then prosecuted for an offence of deception, contrary to the Theft Act 1968, s. 16. The Court of Appeal upheld a judge's ruling that she had no case to answer. A person who had been conditionally discharged was not to be regarded as 'convicted' by reason of s. 14 of the 2000 Act. The Rehabilitation of Offenders Act 1974, s. 1(4) might seem at first to indicate the contrary, but it did not qualify or detract from s. 14 and existed only to enable offenders to take advantage of certain other provisions concerning spent convictions. The court noted that, whilst the police might well be interested in an applicant's criminal activity, including cautions and absolute or conditional discharges, there was nothing to prevent employers such as the police force, who were exempt from the 1974 Act, to frame questions in a wider way, by asking whether applicants had ever been 'found guilty', 'committed a criminal offence' or 'given an absolute or conditional discharge'.

E18 Compensation Orders

E18.1 Power to make Compensation Orders

The effect of delays in the making of compensation orders following the dismissal of confiscation proceedings under the Criminal Justice Act 1988 (i.e. under the old law) was examined in Hussain [2006] EWCA Crim 2405. The Court of Appeal noted that the relevant legislation imposes no fixed time-limits on the making of such orders. The court also noted that in Soneji [2005] UKHL 49 the House of Lords had refused to hold that a confiscation would necessarily be invalidated by failure to adhere to the six-month time-limit specified in respect of such orders. Lord Brown had said in that case (at [76]- [77]) that such time-limits were imposed not for the benefit of the defendant, but to ensure that not too long a time passed before the offender was stripped of his ill-gotten gains.

The court in Hussain, "took a similar view in relation to compensation orders":

They should be made as soon as possible, for the benefit of the victim. And in so far as the 1988 Act contemplates the order being made at the time of sentencing, that is not to raise any expectation in the mind of the offender that if it is not so made, then he can expect to keep his ill gotten gains. . .

That is not to say that such an order could be made at any time, however long after any sentence has been imposed or order made. We do not have to decide what time limit, if any, there may be to the making of a compensation order, still less what time limit there may be arising out of [Proceeds of Crime Act 2002], which does not apply to this case.

As to postponement of confiscation orders under the new regime (and the effect of such postponement on the making of compensation orders) see Blackstone's Criminal Practice 2007, E21.12 et seq.

E23 Exclusions and Disqualifications

E23.7 Sexual Offences Prevention Orders

In Richards [2006] EWCA Crim 2519 the court held that in appropriate cases it was open to a sentencing judge to impose a sexual offences prevention order under the Sexual Offences Act 2003 even when an extended sentence, as provided by the Criminal Justice Act 2003, s. 227, was not required. Having examined the relevant schemes set up by the two statutes (which had been enacted on the same day), Sir Igor Judge P concluded (at [27]):

In our judgment, these schemes were intended to be and are distinct. Therefore it is not a pre-condition to the making of a sexual offences prevention order that the judge should be satisfied that the offender would also qualify for an extended sentence (or for that matter, a sentence of life imprisonment or imprisonment for public protection), or that he should regard himself as deprived of necessary jurisdiction if they do not. That presupposes that the risk of re-offending must either be sufficient for the purposes of the dangerousness provisions in the Criminal Justice Act, or, if it is not, that it should be ignored. In short, although there may well be cases in which the potential overlap between the two sentencing regimes will require close attention, the ambit of the court's broad discretion to make a sexual offences prevention order is prescribed by the provisions which created it, without reference to sections 224-229 of the Criminal Justice Act.

E23.8 Restraining Orders under the Protection from Harassment Act 1997

There is no right of appeal to the Crown Court against a refusal to vary or discharge a restraining order made in a magistrates' court following conviction of an offence of harassment. Such a refusal is not itself a 'sentence' within the meaning of the Magistrates' Courts Act 1980, s. 108. The appropriate remedy to seek in such a case would be by way of judicial review or case stated: R (Lee) v Crown Court at Leeds [2006] EWHC 2550 (Admin).

PART F EVIDENCE

F7 Cross-examination and Re-examination

F7.14 Lifting the Restriction on Evidence about the Complainant's Sexual Behaviour

The Criminal Procedure (Amendment No. 2) Rules 2006 (SI 2006 No. 2636) amend the Criminal Procedure Rules 2005 and, in particular, affect evidence about a complainant's sexual behaviour. A wholly new set of rules on applications to lift the restriction are contained in part 36.

F7.24 Medical Evidence of Disability Affecting Reliability

Robinson [1994] 3 All ER 346 was distinguished in S [2006] All ER (D) 63 (Oct), in which the evidence of an autistic 13-year-old complainant was supported by that of a distinguished paediatrician "vastly experienced in the field of autism" who was permitted to opine that in his view it was unlikely that a child such as the complainant would have been capable of fabricating such a story.

No full transcript of this case was available at the time of writing. At first sight, it is difficult to see any obvious basis on which Robinson could properly have been distinguished. The full transcript may however make things clearer.

F10 Opinion Evidence

F10.3 Expert Opinion Evidence

The Criminal Procedure (Amendment No. 2) Rules 2006 (SI 2006 No. 2636) amend the Criminal Procedure Rules 2005 and, in particular, affect expert evidence. There is a wholly new set of rules on expert evidence in part 33. Part 33 sets out the duty of an expert to the court and the required content of an expert's report and includes a power for the court to order that defence expert evidence will be given by a single joint expert.

F10.6 Credibility

No full transcript of this case was available at the time of writing. At first sight, it is difficult to see any proper basis on which Robinson could properly have been distinguished. The full transcript may however make things clearer.

F10.14 Expert witnesses: Competence and Weight to be attached to Evidence

Stubbs (Paul Matthew) [2006] EWCA Crim 2312 concerns the qualification of expert witnesses and the admissibility and weight to be given to the evidence of an expert who is in some way associated with a financial institution through which a fraud has been perpetrated. The defendant was a password reset clerk employed by HSBC. AT&T had an account at HSBC from which large sums of money were stolen. The defendant was convicted of conspiracy to defraud. In part, his appeal concerned a challenge to an expert witness, a Mr. Roddy, who was an HSBC employee, on the footing that while he could give evidence about the setup within HSBC and the way the system (the Hexagon system) was intended to operate he lacked technical expertise in relation to the functioning of computers. It was further objected that, as an HSBC employee and a member of the technical team trained on the Hexagon system, he lacked objectivity. The trial judge admitted Mr. Roddy as an expert witness.

The Court of Appeal held that the trial judge properly applied the test in Bonython [1984] SASR 45 according to which the judge must decide (1) whether the subject matter of the opinion falls within the class of subjects upon which expert evidence is permissible; and (2) whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issue before the court. The Court held that both tests were satisfied. As to objectivity, arguably the more important issue, the Court followed Gokal (unreported 11 March 1999), holding that the extent of the witness' independence goes to weight not admissibility. In this case there were no features of the evidence of the witness that could support a case of conscious bias or lack of objectivity.

[case noted by Leonard Leigh]

F10.15 Pre-trial Disclosure of Expert Evidence

F12 Character Evidence: Bad Character of Accused

F12.7 Explanatory Evidence

The concept of 'important explanatory evidence' was given a broad interpretation in Pronick [2006] EWCA Crim 2517. At the appellant's trial for the attempted rape of his partner, evidence of a previous rape allegedly committed against her (of which no complaint had been made at the time) was held to have been properly admitted (along with evidence of various acts of violence) as explanatory evidence under the Criminal Justice Act 2003, s. 101(1)(c).

Counsel for the appellant opposed the application to invoke s. 101(1)(c) on the basis that (as Latham LJ put it):

The issue between the prosecution and the defence was perfectly understandable without the previous incidents being led in evidence: the appellant had himself accepted, as we have said, in his interview with the police that the relationship was volatile; that was all the jury needed to understand in order to come to a conclusion as to whether or not the prosecution's case had been made out against the appellant.

With respect, there would appear to have been considerable force in that submission. If the evidence was relevant at all, it was surely more akin to 'similar fact' evidence than to evidence of the Pettman variety, and if so it fell more properly within the ambit of s. 101(1)(d), in which case it would have been open to counsel to apply (albeit with no guarantee of success) for its exclusion under s. 101(3). The line between those two kinds of evidence has been blurred more than once before (see cases cited in the main text at F12.8) but this case does little to resolve the confusion.

NEW LEGISLATION

Statutes

For further information on the following new statutes, see the Office of Public Sector Information.

Fraud Act 2006

The Fraud Act 2006 (covered in Blackstone's Criminal Practice 2007 as the Fraud Bill) received the Royal Assent on 8 November. Its main provisions will come into force on dates that have yet to be appointed.

Violent Crime Reduction Act 2006

This Act received the Royal Assent on 8 November. Its main provisions will come into force on dates that have yet to be appointed, but some provisions came into force on Royal Assent. Detailed provisions governing commencement may be found in s. 66 of the Act.

Emergency Workers (Obstruction) Act 2006

This Act received the Royal Assent on 8 November. Its main provisions will come into force on dates that have yet to be appointed.

Animal Welfare Act 2006

Wireless Telegraphy Act 2006

This Act received the Royal Assent on 8 November. It will come fully into force three months later (see s 126(2)).

Legislative and Regulatory Reform Act 2006

This Act received the Royal Assent on 8 November. It will come fully into force two months later (see s. 33).

Police and Justice Act 2006

This Act received the Royal Assent on 8 November. Its main provisions will come into force on dates that have yet to be appointed, but a small number of provisions came into force on Royal Assent. Detailed provisions governing commencement may be found in s. 53 of the Act.

Road Safety Act 2006

This Act received the Royal Assent on 8 November. Its main provisions will come into force on dates that have yet to be appointed, but ss. 1 (road safety grants) and 49 (disclosure of information to foreign registration authorities) come into force two months after the passing of the Act. Detailed provisions governing commencement may be found in s. 61 of the Act.

Statutory Instruments

Criminal Procedure (Amendment No. 2) Rules 2006 (SI 2006 No. 2636)

These Rules amend the Criminal Procedure Rules 2005. The main changes affect expert evidence (including a new part 33) and evidence about a complainant's sexual behaviour (a largely new part 36). Further amendments prescribe procedure relating to requisitions issued by a public prosecutor under the Criminal Justice Act 2003, s. 29, applications under the Domestic Violence, Crime and Victims Act 2004, s. 17 for counts to be tried without a jury and appeals against a sentence review decision.

Terrorism (United Nations Measures) Order 2006 (SI 2006 No. 2657)

This Order revokes and replaces the Order of 2001. It gives effect to Resolution 1373(2001) adopted by the Security Council of the United Nations on 28th September 2001 relating to terrorism and resolution 1453(2002) adopted on 20th December 2002 relating to humanitarian exemptions. It also provides for enforcement of Regulation (EC) 2580/2001 on specific measures directed at certain persons and entities with a view to combating terrorism.

Domestic Violence, Crime and Victims Act 2004 (Commencement No. 6) Order 2006 (SI 2006 No. 2662)

This Order brings s. 55 of the Act (victims' advisory panel) into force on 4 October 2006.

Crime (International Co-operation)Act 2003 (Commencement No. 3) Order 2006 (SI 2006 No. 2811)

This Order brings ss. 32 to 36 and 42 to 46 of the Act (which implement the 2001 Protocol to the Convention on Mutual Assistance in Criminal Matters) into force on 1 November 2006.

Youth Justice and Criminal Evidence Act 1999 (Commencement No. 12) Order 2006 (SI 2006 No. 2885)

This Order brings certain provisions of the Act fully into force on 6 December 2006. The provisions in question were already in force in all courts except service courts.

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