Companion Website

Blackstone's Criminal Practice 2007

October 2006

October Update 2006

This update to Blackstone's Criminal Practice 2007 was produced by Michael Hirst, Professor of Criminal Justice, De Montfort University, Leicester, with assistance from Peter Hungerford-Welch, Associate Dean at the Inns of Court School of Law, The City Law School, London and Laurence Eastham, Editorial Co-ordinator, Blackstone's Criminal Practice.

The October update primarily covers developments occurring or reported in September 2006.

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• Part B: Offences
• Part D: Procedure
• Part F: Evidence
• New Legislation

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PART B OFFENCES

B10 Terrorism, Piracy and Hijacking

B10.31 Membership of a Proscribed Organisation: Elements of the Offence

The Proscribed Organisations (Applications for Deproscription etc.) Regulations 2006 (SI 2006 No. 2299) prescribe the procedure for an organisation to be removed from the list of organisations proscribed under the Terrorism Act 2000. It is an offence under s. 11 of that Act to belong or to profess to belong to a proscribed organisation. The Regulations revoke and replace the 2001 Regulations.

B20 Offences Related to Drugs

B20.2 Possession of Controlled Drugs: Procedure

In relation to cannabis, which is now a class C drug, the general policy of the police is not to prosecute or caution offenders for possession of small amounts that appear to be for personal use only. This does not does not affect offences of production, supply or possession with intent to supply cannabis, and is not intended to preclude the prosecution etc. of persistent or blatant offenders in circumstances identified as sufficiently grave as to be deserving of firmer measures.

This policy does not have (and does not purport to have) the force of law, but in R (Mondelly) v Commissioner of Police for the Metropolis [2006] EWHC 2370 (Admin) the decision of a Metropolitan Police officer to caution the claimant for mere possession was challenged in an application for judicial review, on the basis that it was inconsistent with published force policy, "from which, in accordance with well established public law principles, police officers cannot depart without justification".

The application was rejected. Decisions to prosecute or caution are not of course immune from judicial review (see for example Commissioner of Police of the Metropolis, ex parte Thompson [1997] 1 WLR 1521 and Addaway [2004] EWCA Crim 2831). Indeed Walker J (dissenting) would have allowed the application in this case. He said (at [66]):

"The caution administered to Mr Mondelly clearly contravened the Commissioner's policy on policing simple possession of cannabis, and for no good reason. The injustice to Mr Mondelly is such that the court should intervene"

The majority of the Divisional Court took a different view. They did not accept that there was any such clear and settled policy not to arrest or prosecute for simple possession of cannabis, nor did the policy state explicitly that there should be no cautions. The absence of any such clear and settled policy was, in their view, fatal to the claimant's case. But there was another fundamental difficulty. As Moses LJ explained at [46] if the claimant was right:

"then by the promulgation of Notice 3/2004, the Metropolitan Police Commissioner has rendered it unlawful for a police officer, . . . within the relevant metropolitan area, to arrest or caution anyone for simple possession of cannabis, absent the presence of one of the circumstances identified in the Standard Operating Procedures. This is a startling proposition, particularly when Parliament expressly conferred a power of summary arrest on police constables at the very moment it re-classified cannabis. Any suggestion that arrest or caution is unlawful must be viewed in the context of both the general power of arrest conferred by S.24 of PACE and the explicit power conferred in relation to possession of cannabis conferred by the amendment in Section 3 of the 2003 Act."

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PART D PROCEDURE

D1 Police Powers

D1.1 Police Powers in Investigation of Crime

In R (C) v Chief Constable of 'A' Police and another [2006] EWHC 2352 (Admin), Underhill J was faced with an application for judicial review in which the claimant alleged that the police, and a magistrate who issued warrants at their request, had acted unlawfully (a) by the manner in which they had obtained and executed search warrants at his home in the course of an investigation into suspected child pornography offences; (b) by unnecessarily arresting the claimant; and (c) by unreasonably failing to discontinue the investigation and issue a statement exonerating the claimant once it became clear that, despite the fact that claimant's credit card had been used to subscribe to illegal websites some years before, no illegal pornographic material had been found and no other evidence of misconduct on his part had been secured. The claimant alleged that he had been the victim of identity theft or that the person responsible was his son but, despite strong evidence suggesting that this may indeed have been the case and despite the main focus of the enquiry having switched to the son, the police refused formally to terminate their highly embarrassing investigation into the claimant or acknowledge his innocence.

Underhill J rejected the application. He found the initial investigation to have been lawful and based on reasonable grounds for suspicion. Nevertheless:

"The way in which both the Information and the search warrant which led to the search of the Claimant's home on 24th May were completed was unsatisfactory and reflects no credit on either the police or the Court staff involved. I hope they will learn lessons. There will be cases where carelessness of the kind which occurred here will result in a search being unlawful and the police being liable in damages. But on the particular facts of this case I do not believe that that result follows. The substantive decisions on the part of the police to seek a search warrant, and on the part of the magistrate to grant one, were in my judgment entirely reasonable on the material available; and the particular formal defects in the paperwork are, for the reasons given, not such as to invalidate the warrant."

Underhill J declined to decide the arrest point, although he would have done so if satisfied that the evidence was clear and reasonably complete and that there were strong reasons why the question had to be urgently determined. As to the allegedly perverse failure to conclude the investigation, Underhill J ruled:

"[Counsel] was not able to show me any precedent for the Court intervening to, in effect, close down an ongoing investigation on the basis that there was no prospect of a prosecution eventuating. That does not mean that such relief could never be granted, but it reinforces my own view that it will only be appropriate, if at all, in the most exceptional cases. Where, as I have found to be the case here, there were unquestionably reasonable grounds initially to suspect a person under investigation, the Court should be very slow to second-guess the police in deciding at what point he can be dismissed from the enquiry. In order that it could do so safely the Court would have to be put in possession of all the material that was before the investigators and be given a good understanding of all the many factors that would legitimately be taken into account in making a decision of this kind. That would be highly laborious and would also involve an unwelcome blurring of the separate roles of Court and prosecutor/investigator. Nor is it clear exactly what form of relief would be appropriate. The continuance of an investigation is a factual rather than a legal state of affairs: it has no formal status and until proceedings are commenced by a charge there is no public action taken. Investigations may continue at various levels of intensity and may for good reason be shelved without prejudice to the possibility of being later revived in different circumstances: they do not therefore necessarily have a defined conclusion. It would be highly undesirable to put the police in the position where they had to issue public declarations of innocence."

1.154 Alternatives to Prosecution: Cautions: Judicial Review

See R (Mondelly) v Commissioner of Police for the Metropolis [2006] EWHC 2370 (Admin) (noted at B20.2 above).

D5 Preliminary Proceedings in Magistrates' Courts

D5.6 The Decision to Issue a Summons - Private Prosecution

R (Charlson) v Guildford Magistrates' Court and Others [2006] EWHC 2318 (Admin) considers what the role of magistrates should be when considering an application for a summons for private prosecution in circumstances where the CPS has already brought and discontinued proceedings for the same matter. The claimant's three-year-old son was struck and killed on a pelican crossing by a car allegedly driven by the interested party. The CPS issued a summons against the interested party for driving without due care and attention. The coroner declined to make any findings of fact as to the state of the crossing at the time of the incident and refused to decide any issue of criminal liability on the matter. The CPS then discontinued proceedings. Solicitors for the claimant then laid an information and applied for a summons to Guildford Magistrates' Court. In brief, Guildford Magistrates' Court refused to issue a summons, and South-West Magistrates' Court withdrew a summons which it had issued.

The Court holds that the following principles apply to the issue of summons in circumstances where the CPS has discontinued proceedings. First, private prosecutors are not bound to apply the Code for Crown Prosecutors when deciding whether to issue proceedings nor do the courts apply the evidential sufficiency test in the case of private prosecutions. A private prosecution does not have to satisfy either of these tests. Secondly, there is no rule that when the CPS has already laid an information in respect of the same matter the issue of a summons will be issued only where there is apparent bad faith on the part of the private prosecutor. R v Tower Bridge Magistrates' Court, ex parte Chaudry [1994] QB 340, which has been taken to state the contrary, is distinguishable as a case of potentially concurrent prosecutions where it would be oppressive for the defendant to face two prosecutions; in those circumstances the magistrates should be slow to issue a summons on behalf of the private prosecutor unless there was apparent bad faith on the part of the CPS. It may be suggested that such a case could arise where the CPS proposed to bring charges which were much less severe than the facts in issue apparently warranted.

In a case where the CPS has brought and discontinued proceedings, the magistrates should ascertain that the offence to be charged is known to law, whether the ingredients of the offence are prima facie present, that the issue of a summons is not time-barred, that the court has jurisdiction, that the informant has the necessary authority to prosecute and any other relevant facts. Where the CPS has already brought a prosecution which is still proceeding, the magistrate should be slow, in the absence of special circumstances, to issue a summons for a private prosecution. To this one should add that where the proposed defendant has been cautioned in terms that he would not be prosecuted for the offence if he agreed to be cautioned no summons should issue (Jones v Whalley [2006] UKHL 41).

In the event, the decisions in the two magistrates' courts were quashed. Passages in Stone's Justices Manual 2005, para. 1422 (the same passage appears in the 2006 edition) and in Archbold 2006 at para. 1-259 should not be relied on.
[case noted by Leonard Leigh]

D11 Arraignment and Pleas

D11.23 The Test of Unfitness to Plead

Pritchard (1836) 7 C & P 303, Berry (1977) 66 Cr App Rep 156 and SC v United Kingdom (App No 60958/00) [2005] 1 FCR 347 were considered by the Court of Appeal in Miller and Miller (reported sub nom M and another [2006] All ER (D) 43 (Sep), in which the first defendant was found fit to plead (and was convicted) on charges of child cruelty, despite medical evidence from three psychiatrists to the effect that he had an IQ of just 66, suffered from mild mental retardation, and would have difficulty in following the trial and understanding the evidence.

Applying a similar test to that applied in cases where a jury appears to have rejected medical evidence, the Court of Appeal held that the judge's decision would not be impugned provided there was other evidence supporting it. The judge was obliged to keep his ruling on fitness to plead under review in the course of the trial, in case anything transpired that called his initial ruling into question.

In this case, the judge's ruling was shown to have been correct. The first defendant proved able to cope quite satisfactorily with the trial. At no point had the judge been invited to review his ruling, nor had he raised any concerns on his own part.

D11.59 Retrial Provisions of the Criminal Justice Act 2003

The retrial provisions of the Criminal Justice Act 2003 were examined by the Court of Appeal for the first time in Dunlop [2006] EWCA Crim 1354. The court's ruling in that case (which was made in June 2006 but not then fully reported) enabled the respondent to be re-indicted for a 1989 murder of which he had previously been acquitted. On 11 September he pleaded guilty to that murder in the face of overwhelming new evidence.

The murder in question was a qualifying offence for the purposes of the new law, and it was clear that there was new and compelling evidence against the respondent. This evidence primarily took the form of the respondent's repeated confession to the murder, which had been made in the knowledge that it exposed him to prosecution for perjury at the original murder trial, but at a time when the double jeopardy rule still precluded any retrial for the murder itself. He had in fact already been charged with and convicted of perjury as a result of those confessions.

As the respondent conceded, the Crown's application for a retrial involved no conflict with European human rights law. Article 4(2) of Protocol 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms expressly permits an appellate court to reopen a case in accordance with the provisions of domestic law "if there is evidence of new or newly discovered facts". The respondent did however raise certain other objections in an attempt to forestall the proposed retrial. He argued that an order for a retrial would not be in the interests of justice because:

1. It would not be fair for the respondent to be prejudiced by his confessions and his plea of guilty to perjury when these were made as a result of representations, or alternatively in reliance on a belief, that he could not and would not be tried again for murder;
2. A fair trial would be unlikely because of prejudicial publicity from acquittal to the present day and because there would be unavoidable reference to the previous trials; and
3. The periods of delay prior to the application were so great as to render a retrial contrary to the interests of justice.

The Court dealt with the second and third points first. Using accepted techniques of jury management, said Lord Phillips CJ, it should be possible to select a jury that was not prejudiced by recollection of such publicity. As to the delay, there was little difference between the delay occasionally found in cases involving historic sex offenders, who may have been lulled into a sense of false security by the absence of any charge over 17 or more years and the delay in trying a defendant who had been lulled into a sense of false security by the existence of a rule against double jeopardy. Turning then to the respondent's first and principal argument, Lord Phillips said (at [42] and [45]):

"In reliance on the belief that he was immune from retrial, Dunlop has provided new evidence which is not merely compelling, but overwhelming. There has been no suggestion that he is in a position to attempt to rebut this evidence. In these circumstances we suggested to [counsel] that the issue was not so much whether it was fair that [Dunlop] should be exposed to the jeopardy of another trial, but whether it was fair, having particular regard to the fact that he had set out to 'put the record straight' and pay the considerable penalty for perjury, that he should be exposed to further punishment for murder, the punishment in question being a mandatory life sentence. . .

We have concluded that the public would rightly be outraged were the exception to the double jeopardy rule not to be applied in the present case simply on the basis that Dunlop would not have made the confessions that he did had he appreciated that they might lead to his retrial. We can see no injustice in allowing a retrial in this case. As for the sentence that Dunlop has served for perjury, that was imposed as punishment for lying under oath. It may be that the sentence reflected the consequence of the perjury, namely Dunlop's acquittal of murder, and that for this reason it should be taken into account, to some extent, when determining the minimum term to be served should Dunlop now be convicted of that crime. That is a matter that will fall for consideration if and when a judge comes to sentence Dunlop for the offence of murder."

D11.86 Change of Plea - Guilty to Not Guilty

The circumstances in which a defendant may be allowed to withdraw a plea of guilty were examined once again in DPP v Revitt and Others [2006] EWHC 2266 (Admin). The defendants had ridden their motorcycles at speed along a public footpath, colliding with each other and terrifying an old lady who was walking her dog on the path. Although initially arrested for causing a public nuisance, they were later charged with offences of dangerous driving, driving without a valid licence, driving without insurance, and driving a vehicle without a valid test certificate. They were initially unrepresented, but were warned by the court legal adviser of the nature and seriousness of the charges (including the fact that a custodial sentence was likely), and were also told of their right to legal representation and advance disclosure. They nevertheless entered pleas of guilty.

Having done so, the defendants then seem to have reconsidered their position. They obtained legal representation and attempted to withdraw their pleas, contending (quite implausibly) that they had thought they were pleading guilty only to public nuisance. The magistrates refused to allow this, on the basis that the pleas had been informed and unequivocal, and the Divisional Court upheld that ruling, rejecting arguments that the practice followed in relation to guilty pleas is incompatible with the right to a fair trial under the ECHR, Article 6. In RO v United Kingdom (Application No 23094/93 - 11 May 1994) the Commission at Strasbourg had similarly rejected such an argument.

In Revitt Lord Phillips CJ summarised the principles governing withdrawal of guilty pleas as follows:

13. Where a defendant makes an unequivocal plea of guilty which the court accepts, the defendant is thereupon "proved guilty according to law" within the meaning of Article 6(2). The presumption of innocence ceases to apply and he can be sentenced on the basis that he has been proved guilty.
. . .

15. It is clear on the authorities that a guilty plea can only found a 'conviction' and bring to an end the presumption of innocence where it is unequivocal. If it is equivocal, it must be treated as a plea of 'not guilty'. S v Recorder of Manchester; P. Foster (Haulage) Ltd v Roberts [1978] 2 All ER 751 at pp 754-5.
16. What principles should govern allowing an application to withdraw a guilty plea? In S v Recorder of Manchester [1971] AC 481, Lord Upjohn observed that the discretionary power was one which should "only be exercised in clear cases and very sparingly". That guidance is not of great practical assistance. Better general guidance appears from the comments of Lord Morris of Borth-y-Gest at p. 501:

    "The duty of any court to clear the innocent must be equal or superior in importance to its duty to convict and punish the guilty. Guilt may be proved by evidence. But it also may be confessed. The court will, however, have great concern if any doubt exists as to whether a confession was intended or whether it ought really ever to have been made."

17. If after an unequivocal plea of guilty has been made, it becomes apparent that the defendant did not appreciate the elements of the offence to which he was pleading guilty, then it is likely to be appropriate to permit him to withdraw his plea - see R v South Tameside Magistrates' Court, ex parte Rowland [1983] 3 All ER 689 at p. 692 per Glidewell LJ. Such a situation should be rare, for it is unlikely to arise where the defendant is represented and, where he is not, it is the duty of the court to make sure that the nature of the offence is made clear to him before a plea of guilty is accepted.
18. It may happen, and again this is likely to be rare, that the court hearing an application to withdraw a guilty plea will or should appreciate that the facts relied upon by the prosecution do not add up to the offence charged. In such circumstances, justice will normally demand that the defendant be permitted to withdraw his plea. R v Bournemouth Justices, ex parte Maguire [1997] COD 21 DC appears to have been such a case.

D24 Appeal to the Court of Appeal

D24.17 Compromising Appeals

In Owens and another [2006] EWCA Crim 2206 the Court of Appeal refused to give its approval to an arrangement proposed by the parties, the effect of which would have been to compromise an appeal by two brothers who were each appealing against convictions for conspiracy to evade excise duty on hydrocarbon oils in contravention of the Customs and Excise Management Act 1979, s. 170(2), and for conspiracy to conceal, disguise, convert or transfer the proceeds of criminal conduct, contrary to the Criminal Justice Act 1988, s. 93C(1). The terms of the agreement, if approved, would be that the Crown would not resist the appeals on one count, provided that all other applications and appeals against sentence were withdrawn.

In a postscipt to a judgment dealing primarily with other issues arising from the appeal, Rix LJ emphasised that the court would not consent to such compromises:

"We informed the parties that such a compromise was in our experience unprecedented, and that we were unable to proceed on that basis. Of course, there are occasions, for instance where new evidence comes forward on appeal, where the Crown indicates that it is not minded to resist an appeal. Even in such circumstances, however, the matter is fully opened to the court, so that the court can form its own view of the situation and resolve the matter for itself. In the present case, however, the suggested compromise had no logical or intellectual basis in the appeal, and simply represented a "deal". It was described by counsel as a "compromise". It was unacceptable. It showed a fundamental misunderstanding of the function of the court in determining appeals in accordance with section 2 of the Criminal Appeal Act 1968, namely to allow an appeal against conviction if the court considers the conviction unsafe, and to dismiss the appeal in any other case."

D29 Public Funding and Costs

D29.16 Criminal Defence Service Act 2006

The Criminal Defence Service Act 2006 (Commencement) Order 2006 (SI 2006 No. 2491) brought ss. 1 to 4 of the Act into force on 2 October 2006. These sections have the effect of providing an entirely new framework for the grant of representation orders in criminal proceedings. A new set of regulations governing publicly funded representation in criminal cases also came into force on 2 October.

The Criminal Defence Service (General) (No. 2) (Amendment) Regulations 2006 (SI 2006 No. 2490) amend the Criminal Defence Service (General) (No. 2) Regulations 2001 (SI 2001 No. 1437) as a result of the transfer of responsibility for granting legal aid in criminal proceedings in magistrates' courts from the court to the Legal Services Commission pursuant to the Criminal Defence Service Act 2006. These amendments are designed to cover old orders and provide for their administration under the new regime.

Regulation 2 of the 2001 Regulations is amended so that, in the case of a magistrates' court, the term 'appropriate officer' means the justices' clerk or designated officer. Regulation 6(1) of the 2001 Regulations is amended so that the date of any representation order is the date on which the application for the grant of the order is received. Regulation 6(2) of the 2001 Regulations is amended so that any application for the grant of a representation order in respect of proceedings in the Crown Court or the Court of Appeal which are mentioned in s. 12(2)(a) to (f) of the Act and in reg. 3(2)(h) must be made in accordance with regs. 9 and 10.

Regulation 8 of the 2001 Regulations (the procedure for applying for legal aid in a magistrates' court) is repealed.

Regulation 9(1) of the 2001 Regulations (Crown Court applications) is amended so that it provides that an application for a representation order in respect of proceedings in the Crown Court may be made where an application for such an order in respect of the proceedings in a magistrates' court has not been made or has been refused. Where application is made in the magistrates' court, it has to be in writing.

Regulation 17(1) of the 2001 Regulations, dealing with withdrawal of representation, is amended to provide that, where a charge is varied, the court (or, in proceedings listed in reg. 3(2)(a) to (g) of the 2001 Regulations, the Legal Services Commission) must consider whether the interests of justice continue to require that the accused be represented in respect of the varied charge, and to withdraw the representation order if the interests of justice do not so require. The court (or, as the case may be, the Commission) must also consider whether to withdraw legal aid:

1. where the assisted person declines to accept the order in the terms which are offered;
2. at the request of the assisted person; or
3. where the representative named in the representation order declines to continue to represent the assisted person.

Regulation 17(3) is amended to provide that, where a representation order has been withdrawn, the applicant for any subsequent representation order in respect of the same proceedings must declare the withdrawal of the previous representation order and the reason for it; where the representation order was withdrawn because it was not required in the interests of justice or because the person declined to accept the order on the terms offered or was withdrawn at the request of the assisted person and a representation order is subsequently granted, the court or the Commission, as appropriate, must select the same representative, unless it considers that there are good reasons why it should select a different representative.

The Criminal Defence Service (Representation Orders and Consequential Amendments) Regulations 2006 (SI 2006 No. 2493) empower the Legal Services Commission (instead of the court) to grant legal aid in criminal proceedings in magistrates' courts where it does not already have that power. Where a representation order is granted, the order extends automatically to the Crown Court if the proceedings continue there.

Regulation 3 provides that the Commission may, at any stage of the proceedings, grant to an individual a representation order in respect of 'relevant proceedings' (i.e. criminal proceedings which are listed in s. 12(2)(a) to (f) of the Access to Justice Act 1999 and are in a magistrates' court).

A representation order extends, under reg. 4, to the Crown Court, if the proceedings continue there, and to any incidental proceedings. However, it does not extend to an appeal.

Regulation 5 provides for withdrawal of representation orders. Under reg. 5(1), where any charge against the individual is varied, the representation authority must consider whether the interests of justice require that he be represented in respect of the varied charge (and must withdraw the representation order if the interests of justice do not so require).

Under reg. 5(2), the representation authority must also consider whether to withdraw legal aid where the individual declines to accept the order in the terms on which it is granted, where the individual requests its withdrawal, or where the representative named in the representation order declines to continue to represent the individual.

Regulation 8 amends the Crime and Disorder Act 1998, s. 50 (early administrative hearings) so that, under s. 50(2A), where the accused wishes to be granted legal aid, the Legal Services Commission shall decide whether or not to grant him legal aid. Under s. 50(4A), the hearing may be adjourned to enable that decision to be taken.

The Criminal Defence Service (Financial Eligibility) Regulations 2006 (SI 2006 No. 2492) set out the criteria relating to financial eligibility which must be satisfied before individuals involved in criminal proceedings in a magistrates' court may be granted legal aid.

Regulation 5(1) provides that the representation authority must assess whether the financial resources of the individual are such that he is eligible to be granted a representation order. Under reg. 5(2), some individuals are deemed to be financially eligible: those who, at the date of the application, are under the age of 16, or under the age of 18 and in full-time education. Under reg. 5(3), where the individual is in receipt of a qualifying benefit, he is deemed to be financially eligible for legal aid. The qualifying benefits are:

1. income support;
2. income-based jobseeker's allowance;
3. guarantee credit under the State Pension Credit Act 2002, s. 1(3)(a).

In all other cases, the representation authority must calculate the gross annual income and, if applicable, the annual disposable income of the applicant (in accordance with regs. 7 to 10). Regulation 7(1) stipulates that, in calculating the applicant's income, the representation authority must treat the resources of his partner as those of the applicant, unless the partner has a contrary interest in the proceedings in respect of which he is seeking a representation order. A contrary interest would exist, for example, where the partner is the alleged victim in the case, is a prosecution witness in the case, or is a co-defendant with a contrary interest (e.g., running a 'cut-throat' defence). Under reg. 7(2), where it appears to the representation authority that another person is substantially maintaining the applicant or his partner, or the resources of another person have been (or are likely to be) made available to the applicant or his partner, the representation authority may treat all or part of those resources as the resources of the applicant.

Regulation 8 contains an anti-avoidance provision to the effect that, if it appears to the representation authority that the applicant (or his partner) has, with intent to reduce the amount of his resources, directly or indirectly deprived himself of any resources, or transferred any resources to another person, such resources are to be treated as part of the individual's resources. This is so whether or not the intention of the applicant was to reduce his resources to the level at which he would become financially eligible for legal aid.

Under reg. 9(1), where an individual applies for a representation order, the representation authority must calculate the gross annual income of the individual and, where he has a partner or has children living in his household, must divide the total according to the scale set out in the Schedule, which provides for adding the 'relevant figure' (see below) to 1.00 and dividing the individual's gross annual income by the total. Under reg. 9(2), an individual is eligible for a representation order if his gross annual income, as adjusted under reg. 9(1), is £11,590 or less. Regulation 9(3) provides that an individual is not so eligible if his gross annual income (as adjusted under reg. 9(1)) is £20,740 or more.

Regulation 10(1) requires that, where an individual's gross annual income (as adjusted under reg. 9(1)) is more than £11,590 but less than £20,740, the representation authority must calculate the individual's annual disposable income in accordance with reg. 10(2). This requires the following to be deducted from the applicant's gross annual income:

1. any income tax paid or payable in respect of the period of calculation;
2. any contributions estimated to have been paid under part 1 of the Social Security Contributions and Benefits Act 1992, in respect of the period of calculation;
3. any council tax paid or payable in respect of the period of calculation;
4. any annual rent or annual payment in respect of a mortgage payable by him in respect of his only or main dwelling, less any housing benefit paid under the Social Security Contributions and Benefits Act 1992, or the annual cost of his living accommodation;
5. any child care costs paid or payable in respect of the period of calculation;
6. any bona fide payments for the maintenance of a former partner or of a child or a relative who is not a member of his household paid or payable in respect of the period of calculation;
7. the cost of living expenses in respect of the period of calculation, fixed at £5,304 or, if applicant has a partner or has children living in his household, an amount calculated in accordance with the scale set out in the Schedule to the Regulations. The Schedule provides for adding the 'relevant figure' (see below) to 1.00 and multiplying £5,304 by the total.

The 'relevant figure' for regs 9 and 10 is as follows:

A partner	0.64
Each child of the applicant in his household, aged 0-1	0.15
Each child aged 2-4	0.30
Each child aged 5-7	0.34
Each child aged 8-10	0.38
Each child aged 11-12	0.41
Each child aged 13-15	0.44
Each child aged 16-18	0.59

Under reg. 10(3), an applicant is eligible for a representation order if his annual disposable income, as calculated according to the formula in reg. 10(2), does not exceed £3,156.

Where an individual has been granted a representation order, reg. 11(1) imposes on him a duty to inform the representation authority of any change in his financial circumstances (including, under reg. 11(1)(b), any change of which he should reasonably be aware). Where the effect of such a change is that the individual is no longer financially eligible, the representation authority must withdraw the grant of representation.

Regulation 12 provides for re-calculation of the applicant's income: if it appears to the representation authority that there has been an error in the calculation of the individual's income, or new information comes to light, the representation authority must re-calculate the applicant's income and, if he is no longer financially eligible for a representation order, must withdraw the order.

Regulation 13 provides for renewal of the application for legal aid: if an applicant is refused a representation order on the ground that he is not financially eligible, he may renew his application if, but only if, there is a change in his financial circumstances.

Under reg. 14(1), an applicant who has been refused a representation order on the ground that he is not financially eligible may apply for a review of the decision:

1. to the representation authority, on the ground that there has been a miscalculation of his income or an administrative error; or
2. to the Commission, on the ground that he does not have sufficient means to pay for the cost of legal assistance, notwithstanding that his financial resources are such that he is not financially eligible for a representation order (in which case, the applicant must provide full particulars of his income and expenditure and a certificate by a solicitor as to the likely costs of the proceedings).

Cases falling within (b) might include, for example, cases where the costs are likely to be particularly high, or where the applicant has unusually high outgoings (e.g., having to pay care costs for a disabled relative).

Under reg. 14(6), the Commission may, if it thinks that the application raises a question of such importance that it should be decided by the High Court, refer that question to the High Court for its decision.

Regulation 15 makes provision for the withdrawal of a representation order where the applicant fails to comply with a requirement (under reg. 6) to provide financial information but a representation order was granted nonetheless; in such a case, the representation authority must withdraw the representation order unless satisfied that there are good reasons why it should not do so.

The Criminal Defence Service (Representation Orders: Appeals etc.) Regulations 2006 (SI 2006 No. 2494) provide for appeals or renewed applications where an applicant has been refused publicly funded representation on the ground that the interests of justice do not require him to be granted legal aid (subject to the review provisions in reg. 14 of SI 2006 No. 2492 (set out above). There is no appeal where the order has been refused because the individual is financially ineligible to be granted an order).

Under reg. 3(1), an appeal or a renewed application must be made on the prescribed form. Under reg. 3(3), an appeal or a renewed application will be determined without a hearing unless the person or body determining the appeal or application directs otherwise. Written reasons must be given for any decision on an appeal or a renewed application (reg. 3(5)).

Regulation 4 deals with appeals in magistrates' court cases. Under reg. 4(2), an individual may appeal to the magistrates' court (which for these purposes includes a single justice) against a decision to refuse to grant a representation order made on the grounds that the interests of justice do not require such an order to be granted. The court must either uphold the refusal of legal aid or else decide that it would be in the interests of justice for a representation order to be granted, in which case the individual may then apply to the representation authority for a representation order. In that case, if the individual states in writing, verified by a statement of truth, that his financial resources have not changed since the date of his original application so as to make him financially ineligible for a representation order, the representation authority must grant the order; if his financial resources have so changed, the representation authority must determine whether he is financially eligible for legal aid and, if so, must grant the order.

Regulation 5 makes it clear that there is no appeal against a decision to refuse legal aid in respect of proceedings in a magistrates' court on the grounds that the individual is not financially eligible to be granted legal aid.

Regulation 6 deals with cases which are to be heard in the Crown Court where a representation order has been refused on the grounds that the interests of justice do not require such an order to be granted. In such a case, under reg. 6(1), the individual may make a renewed application to the appropriate officer who, or court which, refused the application. Under reg. 6(2), where the renewed application is made to the appropriate officer, he may either grant the order or refer the application to a Crown Court judge or if the case is still in the magistrates' court, to the court or a District Judge (Magistrates' Court), who may either grant the order or refuse the application.

For cases that are to be heard by the Court of Appeal, the individual may make a renewed application to the court or the appropriate officer. Where the renewed application is made to the appropriate officer, he may either grant the order or refer the application to a judge of the Court of Appeal, who may grant the order or refuse the application.

Regulation 8 covers cases where an application for the grant of legal aid in respect of proceedings other than proceedings in a magistrates' court has been refused by the Legal Services Commission on the grounds that the interests of justice do not require such an order to be granted. The applicant may either make a renewed application to the Commission, which may grant the order or refuse the application.

Regulation 9 deals with appeals where legal aid has been withdrawn. Under reg. 9(1), an individual whose representation order has been withdrawn may apply on one occasion to the person who, or body which, withdrew the order to set aside the withdrawal. The application has to be made on a prescribed form. Where the application is made to the appropriate officer, he may either set aside the withdrawal or refer the application (in a magistrates' court case) to the magistrates' court or a District Judge (Magistrates' Court), (in a Crown Court case) to a judge of the Crown Court, or (in a Court of Appeal case) to a judge of the Court of Appeal.

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PART F EVIDENCE

F6 Examination in Chief

F6.16 Statements in Rebuttal of Allegations of Recent Fabrication

Oyesiku (1971) 56 Cr App R 240 was considered in S [2006] EWCA Crim 2272. See F16.17 below.

F16 Exceptions to the Rule against Hearsay

F16.17 Hearsay Admissible in the Interests of Justice

The Criminal Justice Act 2003, s. 114(1)(d) was considered by the Court of Appeal in S [2006] EWCA Crim 2272. The appellant, aged 16, was arrested on suspicion of a robbery, which had allegedly been committed by a gang of youths of which he was a member. On legal advice gave a no comment interview. At trial, his defence was that he had not been involved in the robbery. He was cross examined by the prosecution as to why he had not said this to the police, but he was not accused of subsequently inventing his defence.

His counsel sought to adduce evidence of a statement which the appellant had made to his solicitor prior to his police interview, but the trial judge declined to admit it under s. 114(1)(d), ruling that it would not be in the interest of justice to admit it. The judge did however direct the jury not to draw adverse inferences from the appellant's silence at interview.

Dismissing the appellant's appeal against his conviction for robbery, the Court of Appeal focused, as did the trial judge, on the fact that the excluded statement (which was not wholly exculpatory or consistent with the defence case) would have done little to assist the appellant and might in some ways have damaged his actual defence.

The case was distinguishable from Oyesiku (1971) 56 Cr App R 240 (see F6.16) in which a statement made to a defence solicitor by a key witness was held to be admissible to rebut the suggestion that the defence case was a subsequent fabrication.

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NEW LEGISLATION

Immigration, Asylum and Nationality Act 2006 (Commencement No. 2) Order 2006 (SI 2006 No. 2226).

This Order brings into force, on 31 August 2006, ss. 1 to 3, 5 to 7, 11, 14, 19, 23, 27 to 29, 40 to 42, 46, 49, 53 to 55, 59 and 61 and the majority of the entries in schs. 1 and 3.

Proscribed Organisations (Applications for Deproscription etc.) Regulations 2006 (SI 2006 No. 2299).

These Regulations prescribe the procedure for an organisation to be removed from the list of organisations proscribed under the Terrorism Act 2000. It is an offence under s. 11 of that Act to belong or to profess to belong to a proscribed organisation. The Regulations revoke and replace the 2001 Regulations.

Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2006 (SI 2006 No. 2383).

This Order amends the principal Order so as to specify as regulated activities for the purposes of the Financial Services and Markets Act 2000 the activities of entering into, administering, arranging and advising on regulated home reversion plans and regulated home purchase plans. The Order also clarifies an existing provision relating to high net worth companies and amends inter alia the Companies Act 1985 and the Money Laundering Regulations 2003.

Terrorism Act 2000 (Business in the Regulated Sector) Order 2006 (SI 2006 No. 2384).

This Order amends the Terrorism Act 2000, sch. 3A, so as to add to the list of excluded activities the regulated activities of arranging deals in investments or advising on investments, in so far as the investment consists of rights under a regulated home reversion plan or a regulated home purchase plan. The effect of this is that a business will not be in the regulated sector to the extent that it conducts such activities. This is relevant to the offence of failure to disclose information concerning money laundering in ss. 21A and 21B of the Act which requires information to come to a person in the course of a business in the regulated sector.

Proceeds of Crime Act 2002 (Business in the Regulated Sector) Order 2006 (SI 2006 No. 2385).

This Order amends the Proceeds of Crime Act 2002, sch. 9, so as to add to the list of excluded activities the regulated activities of arranging deals in investments or advising on investments, in so far as the investment consists of rights under a regulated home reversion plan or a regulated home purchase plan. The effect of this is that a business will not be in the regulated sector to the extent that it conducts such activities. This is relevant to the offence of failure to disclose information concerning money laundering in s. 330 of the Act which requires information to come to a person in the course of a business in the regulated sector.

Criminal Defence Service (General) (No. 2) (Amendment) Regulations 2006 (SI 2006 No. 2490).

These Regulations amend the Criminal Defence Service (General) (No. 2) Regulations 2001 (SI 2001 No. 1437) as a result of the transfer of responsibility for granting legal aid in criminal proceedings in magistrates' courts from the court to the Legal Services Commission pursuant to the Criminal Defence Service Act 2006.

Criminal Defence Service Act 2006 (Commencement) Order 2006 (SI 2006 No. 2491).

This Order brings ss. 1 to 4 of the Act into force on 2 October 2006.

Criminal Defence Service (Financial Eligibility) Regulations 2006 (SI 2006 No. 2492).

These Regulations set out the criteria relating to financial eligibility which must be satisfied before individuals involved in criminal proceedings in a magistrates' court may receive publicly funded representation. They take effect from 2 October 2006, when the relevant amendments to the Access to Justice Act 1999 effected by the Criminal Defence Service Act 2006 come into force.

Criminal Defence Service (Representation Orders and Consequential Amendments) Regulations 2006 (SI 2006 No. 2493).

These Regulations empower the Legal Services Commission, instead of the court, to grant a right to publicly funded representation in criminal proceedings in magistrates' courts where it does not already have that power and make a number of connected and consequential changes. They take effect from 2 October 2006, when the relevant amendments to the Access to Justice Act 1999 made by the Criminal Defence Service Act 2006 come into force.

Criminal Defence Service (Representation Orders: Appeals etc) Regulations 2006 (SI 2006 No. 2494).

These Regulations provide for appeals or renewed applications where an individual involved in criminal proceedings has been refused publicly funded representation on the grounds that the interests of justice do not require him to be granted an order giving a right to such representation. They take effect from 2 October 2006, when the relevant amendments to the Access to Justice Act 1999 effected by the Criminal Defence Service Act 2006 come into force.

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