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Blackstone's Criminal Practice 2007
Updates
Part B
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Blackstone's Criminal Practice 2007

Part B

Updates to Part B

November 2006

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.

Author: MH

December 2006

B1.17 Diminished Responsibility: Relevance of Intoxication

In Hendy [2006] EWCA Crim 819 the Court of Appeal held that the principles established in Dietschmann [2003] UKHL 10 did not change the law relating to diminished responsibility and intoxication, but merely restated the law, so as to correct erroneous rulings of the Court of Appeal in Egan [1992] 4 All ER 470 and Atkinson [1985] Crim LR 314. It followed that a judge who prior to the ruling in Dietschmann directed a jury in accordance with Egan had misdirected the jury.

Hendy was followed in Robson [2006] EWCA Crim 2749, in which the appellant's conviction for murder was quashed after ten years even though there was no surviving transcript of the trial judge's directions to the jury. It was accepted that the judge must have directed the jury in accordance with the law as it was (wrongly) understood at the time.

Rix LJ said (at [40]):

Ultimately . . . the question that arises is whether the conviction is safe in the light of Dietschmann and Hendy. In our judgment, it is not. We are unable to distinguish this case from Hendy. It was common ground between the Crown and the appellant in that case that the judge's misdirection was such as to render the verdict of murder unsafe . . . . We agree. Despite the circumstance that the burden of the defence of diminished responsibility lay on the appellant, and despite the fact that here, as in Hendy, the appellant did not give evidence at his trial, we readily conclude that, if the jury had been correctly directed in accordance with the Dietschmann direction, it may well have been persuaded that the appellant was suffering from an abnormality of mind that, despite drink or drugs, had substantially impaired his mental responsibility. For all we know, the jury here had been persuaded by the evidence of the three defence psychiatrists at trial that the appellant had been suffering from an abnormality of mind, but were not satisfied that his drink had not removed the defence from him. We are unable to see how we can second guess that judgment by describing the conviction as nevertheless safe, with or without new evidence.

A discretionary life sentence was substituted, with a recommendation that the Parole Board should give immediate consideration to the question of the appellant's possible release. Whether the appellant remained a danger to the public was not something which the court considered itself equipped to decide.

Author: MH

August 2007

B1.40 Manslaughter by Gross Negligence

The Corporate Manslaughter and Corporate Homicide Act 2007 creates a new offence of corporate manslaughter (and in Scotland a new offence of corporate homicide). When brought into force in England and Wales, the corporate manslaughter offence will supplant that of gross negligence manslaughter insofar as corporations (including registered companies and limited liability partnerships) and any other organisation subject to the new law are concerned. These other bodies are: government departments or other organisations listed in sch. 1 to the Act; police forces, and any partnership, trade union or employers' association that is an employer (see also ss. 11 to 14). Common partnerships, which have no legal personality, were not at first intended to be included within the scheme of the Act, but were brought in by late amendments. It is now provided that any fine imposed on a firm under the Act will be payable out of partnership funds.

By s. 1, any such company or organisation is guilty of an offence if the way in which its activities are managed or organised - (a) causes a person's death, and (b) amounts to a gross breach (as defined in s. 8) of a relevant duty of care owed by it to the deceased under the law of negligence, including the Occupiers' Liability Act 1957, the Defective Premises Act 1972 and the Occupiers' Liability Act 1984.

An organisation is guilty of an offence under s. 1 only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach. Negligence by employees or junior managers may also be a factor, but a corporation cannot be guilty on the basis of negligence alone.

"Relevant duty of care" is defined in s. 2 and includes:

  1. a duty owed to its employees or to other persons working for the organisation or performing services for it;
  2. a duty owed as occupier of premises;
  3. a duty owed in connection with- (i) the supply by the organisation of goods or services (whether for consideration or not), (ii) the carrying on by the organisation of any construction or maintenance operations, (iii) the carrying on by the organisation of any other activity on a commercial basis, or (iv) the use or keeping by the organisation of any plant, vehicle or other thing; and
  4. a duty owed to a person who, by reason of being a person mentioned in s. 2(2), is someone for whose safety the organisation is responsible (s. 2(2) includes someone detained at a custodial institution or in a custody area at a court or police station).

For the purposes of this Act, whether a particular organisation owes a duty of care to a particular individual is a question of law, and in certain circumstances (including certain military, police and rescue operations) liability is excluded.

The liability of a corporation or other specified body for manslaughter will no longer depend on it being established that any individual 'directing mind' of the company was guilty of that same offence. A general or collective management failure will suffice, as long as this involves or includes a substantial element of failure on the part of 'senior management'. Moreover, individual directors or managers cannot be joined as secondary parties to the new offence (s. 18), but may still be guilty of common-law manslaughter or health and safety offences on the basis of their own personal actions.

Proceedings for an offence of corporate manslaughter may not be instituted in England and Wales without the consent of the DPP (s. 17).

Author: MH

December 2006

B1.49 Causing the Death of a Vulnerable Adult: Sentence

In Liu and another [2006] All ER (D) 242 (Nov) a sentence of six years' imprisonment was upheld where the defendant had stood by and allowed his mistress to treat his depressed and inadequate Chinese wife as a slave and mount a campaign of "sustained physical cruelty" against her, culminating in her death. The mistress pleaded guilty to manslaughter and to causing GBH with intent, and was sentenced to nine years. Both sentences were rightly described as 'not a day too long'.

Author: MH

June 2007

B1.50 Causing or Allowing the Death of a Child or Vulnerable Adult

In Mujura and Stephens [2007] EWCA Crim 1249, the Court of Appeal considered what is meant by the Domestic Violence, Crime and Victims Act 2004, s. 5(1)(c), when it refers to a 'significant risk of serious physical harm'. The trial judge had directed the jury in this case that a significant risk includes any risk that is not merely minimal. This was held to be a misdirection. The court held that (following Brutus v Cozens [1973] AC 854) the jury should have been directed merely to give the word its ordinary meaning. Moore-Bick LJ said (at [31]):

In our view there is nothing in the Domestic Violence, Crime and Victims Act 2004 to suggest that the word 'significant' as used in section 5(1) was intended to bear anything other than its ordinary meaning. It is an ordinary English word in common use and we do not think that it is any less intelligible to the average member of a jury than the word 'insulting'. There may be room for disagreement in any given case about whether risk of serious physical harm to the deceased was or was not significant and, if it was, whether the defendant was or ought to have been aware of the fact, but the decision remains one of fact for the jury applying their collective understanding of the word 'significant'. In our view, therefore, the judge was wrong to tell the jury that it means 'more than minimal'; he should not have sought to define it, for the reasons given by Lord Reid in Cozens v Brutus and, if asked, should have told them to give the word its ordinary meaning.

Author: MH

December 2006

B1.92 Solicitation of Murder

At common law, incitement is an offence under English law only where the act incited would equally be an offence under English law. In Hamza [2006] EWCA Crim 2918, however, the Court of Appeal held that the Offences Against the Person Act 1861, s. 4, makes the incitement or solicitation of murder an offence in England, even where the proposed killing is to be committed by foreigners abroad in circumstances that would not fall within English criminal jurisdiction. In other words, the act of incitement may be an offence under English law, even if the proposed act of murder would not be.

Author: MH

30 October 2006

B2.31; B2.38 Grievous bodily harm-mental element

Meachen [2006] EWCA Crim 2414 clarifies the law concerning the relationship between the mental element for these offences and the question of consent. The appellant pleaded guilty to offences of indecent assault (under the Sexual Offences Act 1956, s. 14(1) - the events in question preceded the Sexual Offences Act 2003) and inflicting grievous bodily harm contrary to the Offences Against the Person Act 1861, s. 20, after a ruling by the judge that he had no defence. He was convicted by a jury of an offence under the Offences Against the Person Act 1861, s. 18. The Court quashed the former convictions but not the latter.

Put briefly, the appellant administered the date rape drug, GHB, to the victim. Whether the victim took it willingly was in dispute. The victim suffered appalling injuries to her anus. The appellant contended that the victim had consented to anal penetration by his fingers and that he had not intended or foreseen injury to her. A defence medical expert gave evidence that the injury could have occurred in this way. The prosecution expert insisted that the injury must have been caused by "fisting" or the insertion of a large blunt object into the complainant's anus. At trial the judge ruled, relying on Emmett [1999] EWCA Crim 1710, that consent was not available to the appellant given the severity of the complainant's injuries. The Court of Appeal holds, however, that in order for a person to be convicted under s. 20 it must be shown that the actor intended to cause injury or was advertently reckless as to whether he might cause injury. Here intent or recklessness was in issue and so the Crown was obliged to prove it.

On a charge of indecent assault the Crown must prove that the touching was without consent. If touching was with consent then the actor can only be convicted if it is proved that he acted intentionally or recklessly as to the injury. The judge thus erred as to the s. 20 offence and that of indecent assault in failing to address the issue of the appellant's mental element.

As to the s. 18 offence, the issues were fully left to the jury and the conviction on that count was safe.

This case contains a full review of the authorities and should be read in full.

Click here for the full text of the judgment.

Author: LL

November 2006

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.

Author: MH

November 2006

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.

Author: MH

September 2007

B2.41 Wounding or Causing Grievous Bodily Harm with Intent: Alternative Verdicts

In Banton [2007] EWCA Crim 1847, D was alleged to have deliberately smashed a bottle in V's face after V had stepped on her toes while dancing. D claimed that she had merely thrown a bottle in V's direction after V and her friends had attacked her, but had not meant to cause any injury. Clearly the jury did not believe her. D was convicted on a single count of wounding with intent to do GBH, contrary to the OAPA 1961, s. 18. The jury was not directed as to any alternative verdict, although a verdict of malicious wounding under s. 20 was certainly available to them as a matter of law. In the trial judge's words, prosecuting counsel 'nailed his colours to the s. 18 mast' - if D hit V in the face as alleged, she must, said counsel, have intended to cause serious injury. The prosecution would have no truck with alternative theories as to the bottle being recklessly thrown in V's direction.

On that basis, the Court of Appeal concluded that this was one of the exceptional cases posited in Coutts [2006] UKHL 39, in which directing the jury as to the alternative charge would have infringed D's right to a fair trial. The prosecution was right not to seek to add an alternative s. 20 count to the indictment and the judge was right not to order it.

This may well have been correct if the only possible factual basis of a s. 20 verdict was the 'recklessly thrown bottle' scenario expressly rejected by the prosecution, but (with respect) some jurors might surely have wondered whether D really intended to cause such serious injuries, even if she did she strike V with the bottle in precisely the manner alleged by the prosecution. Not everyone struck with a bottle suffers serious injury. In what sense would D's right to a fair trial have been infringed if the judge had invited the jury to consider the possibility that she did indeed hit V deliberately, as the prosecution alleged, but only with the intention of causing some lesser kind of injury, or perhaps without considering the consequences at all? Counsel may have been reluctant to leave the jury with this 'soft option' to fall back on, but according to Coutts that would not have been a valid reason for the judge to leave the jury without guidance on that issue.

Author: MH

June 2007

B2.63 Kidnapping

The basic elements of the offence of kidnapping were re-examined by the Court of Appeal in Hendy-Freegard [2007] EWCA Crim 1236. The prosecution case was that the appellant, a confidence trickster, had defrauded his victims and exerted a malign influence over their lives; but a specific charge of kidnapping was based on the allegation that he had deceived his victims into making journeys that they would not have made had they known the truth. He had not accompanied them, however, and there was no evidence to suggest that they had been deprived of their liberty.

His conviction for kidnapping was quashed, because there was nothing that could have been regarded as a 'taking and carrying away'. As Lord Phillips CJ pointed out at [57]:

. . . the bigamist who induces a woman to travel to the church for a wedding ceremony might be guilty not merely of bigamy but also of kidnapping. Such a submission transforms the offence of kidnapping in a manner that cannot be justified. . .

As to the need for a deprivation of liberty, this appears to have been overlooked in Cort [2004] QB 388, in which D tricked his 'victims' into riding in his car by deceiving them into thinking that their bus had broken down. According to Cort this was sufficient for an offence of kidnapping, even though there was no evidence to suggest that D made any attempt to detain them against their will. But Cort is inconsistent with Wellard [1978] 3 All ER 161 and was strongly doubted in Hendy-Freegard, where Lord Phillips CJ said (at [55]):

We cannot see that there was justification for extending the offence of kidnapping to cover the situation in which the driver of the car has no intention of detaining his passenger against her will nor of doing other than taking her to the destination to which she wishes to go, simply because in some such circumstances the driver may have an objectionable ulterior motive. The consequence of the decision in Cort would seem to be that the mini-cab driver, who obtains a fare by falsely pretending to be an authorised taxi, will be guilty of kidnapping.

Although not formally overruled, Cort is now a discredited authority and can no longer be relied upon in this context.

Author: MH

November 2006

B2.103 Child Cruelty: Mens Rea

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.

Author: MH

February 2007

B3.1 General

The Violent Crime Reduction Act 2006 (Commencement No. 1) Order 2007 (SI 2007 No. 74) brings into force, on 12 February 2007, inter alia s. 55 of the Act, which provides for the continuation of sexual offences law. This provision was cl. 51 of the Bill.

Author: MH

May 2007

B3.1 Sentencing Guidelines: General

The Sentencing Guidelines Council has issued guidelines in respect of the various offences under the Sexual Offences Act 2003 and offences under the Protection of Children Act 1978 and the Criminal Justice Act 1988. See here (PDF File).

Author: MH

November 2006

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.

Author: MH

April 2007

B3.8 Rape - Absence of Consent

The Sexual Offences Act 2003, s. 74, was examined by the Court of Appeal in Bree [2007] EWCA Crim 256, where the principal question concerned the effect of self-induced intoxication on a complainant's capacity to give effective consent to sexual intercourse. The story in this case is a familiar one: young man and young woman each have too much to drink, sexual intercourse takes place, and young woman later makes a complaint of rape which young man denies, claiming that she consented and enjoyed it. Dougal (November 2005, unreported) in which D was controversially acquitted, involved most of those same features.

The first problem that arises in such cases is usually one not of definition but of evidence. If both the defendant and the complainant tell stories that are credible, and neither is badly damaged in cross-examination then, in the absence of corroboration of some kind, the jury will not ordinarily know who to believe. Nor is the prosecution case helped if the complainant's recollection of the events has been blurred by her own intoxication. In such cases, acquittal (as in Dougal) is usually the only proper verdict. This is no fault of the law. As Judge P observed in Bree (at [36]) the principal difficulties faced by a jury are not legal:

They lie with infinite circumstances of human behaviour, usually taking place in private without independent evidence, and the consequent difficulties of proving this very serious offence.

In Bree however the definition of consent was also in issue. The Sexual Offences Act 2003, s. 74, was supposed to provide a clearer and more coherent definition of consent than the old judicial attempts at definition, of which Olugboja (1981) 73 Cr App R 344 was the leading authority. According to s. 74 '...a person consents if he agrees by choice, and has the freedom and capacity to make that choice', but neither 'freedom', nor 'capacity', are further defined or explained within the Act, and these are themselves complex concepts, so we are not that much further forward.

When considering the ability of an intoxicated complainant to give valid consent, the court in Bree derived assistance from Lang (1976) 62 Cr App R 50, in which it was said that:

. . . there is no special rule applicable to drink and rape. If the issue be, as here, "did the woman consent?" the critical question is not how she came to take the drink, but whether she understood her situation and was capable of making up her mind.

See also Malone [1998] 2 Cr App R 447. In Bree, Judge P concluded that, just as a drunken intent remains an intent, so a drunken consent remains a consent:

In our judgment, the proper construction of section 74 of the 2003 Act, as applied to the problem now under discussion, leads to clear conclusions. If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant's state of mind, if intercourse takes place, this would be rape. However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape. We should perhaps underline that, as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, is fact specific, or more accurately, depends on the actual state of mind of the individuals involved on the particular occasion.

Author: MH

August 2007

B3.8 Rape: Absence of Consent

The concept of consent under the Sexual Offences Act 2003, and in particular the 'conclusive presumptions' as to consent in s. 76 of the Act were examined by the Court of Appeal in Jheeta [2007] EWCA Crim 1699.

In this bizarre case, the complainant received threatening text messages that unknown to her were coming from the appellant, her boyfriend. When she told him of the texts, he offered to approach the police on her behalf, but instead coerced her into agreeing to have frequent sexual intercourse with him by sending further text messages purporting to come from various police officers supposedly investigating the threats made against her. She was told that she might be fined if she failed to submit to him.

D pleaded guilty rape on the basis that he 'anticipated that the complainant would be persuaded by the text messages to engage in sexual intercourse with increased frequency.'

The court held that, on such facts, s. 76 was not engaged. Sir Igor Judge P said:

24. In our judgment the ambit of section 76 is limited to the 'act' to which it is said to apply. In rape cases the 'act' is vaginal, anal or oral intercourse. Provided this consideration is constantly borne in mind, it will be seen that section 76(2)(a) is relevant only to the comparatively rare cases where the defendant deliberately deceives the complainant about the nature or purpose of one or other form of intercourse. No conclusive presumptions arise merely because the complainant was deceived in some way or other by disingenuous blandishments of or common or garden lies by the defendant. These may well be deceptive and persuasive, but they will rarely go to the nature or purpose of intercourse. Beyond this limited type of case, and assuming that, as here, section 75 has no application, the issue of consent must be addressed in the context of section 74.
Judge P went on to note that cases such as Linekar [1995] 2 Cr App R 49 would accordingly fall outside the scope of s. 76, whereas cases such as Williams [1923] 1 KB 340 would be within it. As for the present case:
28. On the written basis of plea the appellant undoubtedly deceived the complainant. He created a bizarre and fictitious fantasy which, because it was real enough to her, pressurised her to have intercourse with him more frequently than she otherwise would have done. She was not deceived as to the nature or purpose of intercourse, but deceived as to the situation in which she found herself. In our judgment the conclusive presumption in section 76(2)(a) had no application . . . However that is not an end of the matter.

29. We are being asked to examine the safety of convictions for rape where the appellant pleaded guilty. He did so on the basis of plea which accepted the accuracy of his admissions in interview with the police, and in particular did not question his unequivocal admission that there were occasions when sexual intercourse took place when the complainant was not truly consenting. This is entirely consistent with his acknowledgement that he persuaded the complainant to have intercourse with him more frequently than otherwise, and the persuasion took the form of the pressures imposed on her by the complicated and unpleasant scheme which he had fabricated. This was not a free choice, or consent for the purposes of the Act. In these circumstances we entertain no reservations that on some occasions at least the complainant was not consenting to intercourse for the purposes of section 74, and that the appellant was perfectly well aware of it. His guilty plea reflected these undisputed facts. Accordingly the appeal against conviction is dismissed.

Author: MH

November 2006

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:

  1. 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".
  2. 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.
  3. 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.
  4. 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.

Author: MH

November 2006

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).

Author: MH

November 2006

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.

Author: MH

March 2007

B3.22 Sexual Assault

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

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

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

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

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

See also A3.10 above.

Author: MH

June 2007

B3.56 Causing or Inciting a Chid under 13 to Engage in Sexual Activity

An offence under the Sexual Offences Act 2003, s. 8, can be committed by a person who, with the requisite intention, makes a statement which in specific terms directly incites a child or children under the age of 13 to engage in sexual activity. It is not necessary to identify any specific person to whom the statement is addressed: see Jones [2007] EWCA Crim 1118. It is however necessary for the incitement to be communicated to at least one such child. If this cannot be proved (as where the incitement is addressed to a police officer who purports to be under that age) an appropriate charge may be one of attempt to commit an s. 8 offence (applying Shivpuri [1987] AC 1).

Author: MH

August 2007

B3.78 Child Sex Offences Committed by Children or Young Persons

It may be appropriate to note in this context an observation by by Hughes LJ at the conclusion of his judgment in DPP v R [2007] EWHC 1842 (Admin), albeit that the case in question involved allegedly non-consensual behaviour:

. . .where very young, or very handicapped, children are concerned there may often be better ways of dealing with inappropriate behaviour than the full panoply of a criminal trial. Even where the complaint is of sexual misbehaviour it ought not to be thought that it is invariably in the public interest for it to be investigated by means of a criminal trial, rather than by inter disciplinary action and co operation between those who are experienced in dealing with children of this age and handicap.

Author: MH

February 2007

B3.212 Trafficking: Sentencing

The Violent Crime Reduction Act 2006 (Commencement No. 1) Order 2007 (SI 2007 No. 74) brings into force, on 12 February 2007, inter alia s. 54 of and sch. 4 to the Act, which make provision for the forfeiture and detention of land vehicles, ships and aircraft where a person is convicted of a trafficking offence under the Sexual Offences Act 2003, ss. 57 to 59.

Author: MH

February 2007

B3.217 Trafficking: Sentencing

The Violent Crime Reduction Act 2006 (Commencement No. 1) Order 2007 (SI 2007 No. 74) brings into force, on 12 February 2007, inter alia s. 54 of and sch. 4 to the Act, which make provision for the forfeiture and detention of land vehicles, ships and aircraft where a person is convicted of a trafficking offence under the Sexual Offences Act 2003, ss. 57 to 59.

Author: MH

February 2007

B3.221 Trafficking: Sentencing

The Violent Crime Reduction Act 2006 (Commencement No. 1) Order 2007 (SI 2007 No. 74) brings into force, on 12 February 2007, inter alia s. 54 of and sch. 4 to the Act, which make provision for the forfeiture and detention of land vehicles, ships and aircraft where a person is convicted of a trafficking offence under the Sexual Offences Act 2003, ss. 57 to 59.

Author: MH

November 2006

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.

Author: MH

November 2006

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.

Author: MH

September 2007

B3.283 Outraging Public Decency

In Hamilton [2007] EWCA Crim 2062, D used a camera hidden in a rucksack, to secretly film a number of 'upskirt' videos of women and girls, usually while standing behind them at supermarket checkouts. Only one of his 'subjects' was ever identified: she was a girl aged 14 at the time, and this led to charges under the Child Protection Act 1978, s. 1. He stopped making the videos in 2001, so no question arose of a prosecution under the Sexual Offences Act 2003, s. 67, but it must in any case be doubtful whether any of them could be said to be 'doing a private act' (as defined in s 68) at the relevant time. In respect of the adult subjects, the Crown therefore relied on the common-law offence of outraging public decency, arguing that the requisite elements of that offence were all present: D's conduct was committed in public; it was of such a lewd, obscene and disgusting character as to outrage public decency; and it was at least capable of being seen by those present at the time, had they been more vigilant. The fact that no one actually realised what he was doing did not matter. D however argued that it was necessary for the act to be witnessed by at least one person; and that at least one other person must have been present and capable of witnessing it (relying on Mayling [1963] 2 QB 717). As no one realised what he was doing, no offence was committed.

Having considered Mayling, Knuller Ltd v DPP [1972] 2 All ER 898 and other authorities dating back to Sedley's case (1675) Strange 168, the Court of Appeal concluded that it was necessary to have regard to the purpose of the 'two person' rule. This was concerned only with the necessity for there to be a public element in the sense of more than one person being present and capable of being affected by the offending conduct. In the present case, although no one saw what D was doing, there were indeed others present, and by their verdict the jury must have concluded that D's conduct was capable of being seen by them. His conviction was upheld.

Author: MH

December 2006

B4.20 Property Belonging to Another: Equitable Proprietary Interests

Shadrokh-Cigari [1988] Crim LR 465 was applied by the Courts-Martial Appeal Court in Webster [2006] EWCA Crim 2894. The appellant in this case was a sergeant in the army, who was charged with stealing a medal 'belonging to the Secretary of State' by selling it on the internet for £605. His captain had been issued with two of the medals by mistake, and had passed one of them to the appellant.

The court held that the Secretary of State had 'clearly' retained a proprietary interest in the medal for the purposes of the Theft Act 1968, s. 5(1), and it was not therefore open to the captain to permit its sale (as the appellant alleged he had done). The court inclined to the view that the judge-advocate at the court-martial could properly have directed the board of this as a matter of law, but even if it had been left to the board as a question of fact, only one possible conclusion could have been reached.

Author: MH

April 2007

B4.52 Robbery

Where the prosecution allege that D committed a robbery involving a threat of force, it does not matter whether the victim is actually put in fear or not: it is D's intention that matters (B and R v DPP [2007] EWHC 739 (Admin). The fact that V was not afraid does not mean that D did not seek to put him in fear.

Author: MH

August 2007

B4.70 Burglary: Related Offence

'For an unlawful purpose' in the Vagrancy Act 1824, s. 4(1), means for the purpose of committing an offence, such as burglary. Hiding from the police, having previously committed an offence, is not such a purpose: L v CPS [2007] EWHC 1843 (Admin).

Author: MH

April 2007

B4.118 Fraudulent Use of Telecommunications System

The Violent Crime Reduction Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 858) brings into force, on 6 April 2007, s. 62 of the Act, which amends the Mobile Telephones (Re-programming) Act 2002 so as to make offering or agreeing to re-programme an offence.

Author: MH

November 2006

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.

Author: MH

December 2006

B5.1 Deception and Fraud: Old and New Law

The Fraud Act 2006 (Commencement) Order 2006 (SI 2006 No. 3200) brings the Act fully into force on 15 January 2007.

Author: MH

November 2006

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.

Author: MH

December 2006

B5.92 Fraud Bill

The Fraud Act 2006 (Commencement) Order 2006 (SI 2006 No. 3200) brings the Act fully into force on 15 January 2007.

Author: MH

February 2007

B6.43 Offences Relating to Identity Documents

A further challenge to the effectiveness of ss. 25 and 26 was rejected in Soule Ali [2007] All ER (D) 152 (Jan).

It was argued in that case that attempts to use false or stolen French or Belgian identity cards at French border controls in Dover could not amount to offences under s. 25 because: (i) no register has yet been created; (ii) the offence could not be committed by someone who was not on the register; and (iii) the person to whom false documentation is handed must for this purpose be a person who is able to access the register. The Court of Appeal rejected each of these arguments, reasoning that s. 25 was clearly intended to punish any conduct that would previously have been punishable under the Forgery and Counterfeiting Act 1981, s. 5(f) or 5(fa).

Author: MH

February 2007

B6.44 Offences Relating to Identity Documents: Procedure and Jurisdiction

Correction: As stated in the main text, offences under the Forgery and Counterfeiting Act 1981, s. 5(1) and (3), are triable either way (Forgery and Counterfeiting Act 1981, s. 6) as are offences under the Identity Cards Act 2006, s. 25(5). When tried on indictment they are class 3 offences. BUT Offences under the Identity Cards Act 2006, s. 25(1) and (3) are triable only on indictment. All are Group A offences for jurisdiction purposes under the CJA 1993, part I.

Author: MH

August 2007

B6.95 False Trade Descriptions: Procedure and Enforcement

For the purposes of the Trade Descriptions Act 1968, s. 19(1), the 'prosecutor' is the local authority, and not the individual officer of the authority who institutes the proceedings on the authority's behalf. Time begins to run against the authority as soon as it can be imputed by its officers or employees with knowledge of the alleged offence, whereas the individual who instigates the prosecution on its behalf almost certainly learns about the offence at a much later stage: R (Donnachie) v Cardiff Magistrates' Court [2007] EWHC 1846 (Admin).

Author: MH

August 2007

B6.98 False Trade Descriptions: Elements

In R (Donnachie) v Cardiff Magistrates' Court [2007] EWHC 1846 (Admin) at [25], the Divisional Court distinguished between offences under the Trade Descriptions Act 1968, ss. 1(1)(a) and 1(1)(b) in the context of the sale of a taxi with a falsified odometer, and of the time-limits on prosecutions imposed by s. 19 of the Act (see B6.95 above):

Section 1(1)(a) and 1(1)(b) create two separate absolute liability offences under the Trade Descriptions Act 1968. The use of the word 'applies' in 1(1)(a) and 'supplies' in 1(1)(b) marks the difference between the two offences. A false trade description can be applied to goods even before they are sold. This section is clearly designed to make it an offence to turn back the odometer and to supply or offer to supply a vehicle with an altered odometer. It may well be that in some cases it is only on sale or offer for sale that the altered reading is discovered but this does not affect the fact that to alter an odometer in itself is to apply a false trade description to a car, namely that it has been driven a lesser number of miles than it has in fact been driven.

Author: MH

September 2007

B7.1 Offences under the Companies Act 1985: General

The Companies Act 2006 (Commencement No. 3, Consequential Amendments, Transitional Provisions and Savings) Order 2007 (SI 2007 No. 2194), as amended by the Companies Act (Commencement No. 4 and Commencement No. 3 (Amendment)) Order 2007 (SI 2007 No. 2607), brings various provisions of the Act into force on 1 October 2007, 1 November 2007, 15 December 2007 and 1 October 2008. The provision of particular interest to criminal practitioners which is brought into force is s. 993 (fraudulent trading), which is in force from 1 October 2007, but a wide range of other offence provisions, and offence-creating provisions which support them, have been brought into force as follows:

  • ss. 29 and 30 (resolutions and agreements affecting a company's constitution);
  • ss. 116 to 119 (inspection of register of members);
  • ss. 145 to 153 (exercise of members' rights);
  • s. 154 (companies required to have directors);
  • s. 160 (appointment of directors of public company to be voted on individually);
  • s. 161 (validity of acts of directors);
  • ss. 168 and 169 (removal of directors);
  • ss. 170 to 174 and 178 to 181 (general duties of directors);
  • ss. 188 to 226 (transactions with directors requiring approval of members);
  • ss. 227 to 230 (directors' service contracts);
  • s. 231 (contract with sole member who is also a director);
  • ss. 232 to 239 (directors' liabilities);
  • ss. 248 to 259 (supplementary provisions);
  • ss. 260 to 269 (derivative claims and proceedings by members);
  • ss. 281 to 287 (general provisions about resolutions);
  • ss. 288 to 300 (written resolutions);
  • ss. 301 to 307, 310 to 326, 327(1), (2)(a) and (b) and (3), 328, 329, 330(1) to (5), (6)(a) and (b) and (7), 331, 332, 334 and 335 (resolutions at meetings);
  • ss. 336 to 340 (public companies: additional requirements for AGMs);
  • ss. 341 to 354 (additional requirements for quoted companies);
  • ss. 355 to 359 (records of resolutions and meetings);
  • ss. 360 and 361 (supplementary provisions);
  • s. 417 (contents of directors' report: business review);
  • ss. 485 to 488 (appointment of auditors of private companies);
  • s. 993 (fraudulent trading);
  • ss. 994 to 999 (protection of members against unfair prejudice);
  • ss. 1035 to 1039 and 1124 and sch. 3 (company investigations: amendments);
  • ss. 1121 to 1123 and 1125 to 1133 (general supplementary provisions relating to offences), as they apply to offences under part 14 or 15 of the 1985 Act.
It should also be noted that ss. 362 to 379 (control of political donations and expenditure) are brought into force and these provisions include certain allied offences; they are in force from 1 October 2007 except in relation to independent candidates (in respect of whom they come into force on 1 October 2008). Further provisions are brought into force in part (i.e. so far as necessary for the implementation of the provisions listed).

Author: MH

February 2007

B7.11 Fraudulent Trading: Sentence

Furr [2007] EWCA Crim 191 provides further guidance on sentencing for fraudulent trading. As in cases of systematic and large-scale theft (of which Price [2007] 1 Cr App R (S) 6) provides a particularly grave example), it is clear that substantial prison sentences may still be awarded in cases involving grave and substantial frauds. The court in Furr identified the following factors as being critical to the determination of sentence:

  • the total loss;
  • the benefit to the defendant;
  • the identity and vulnerability of those defrauded;
  • the duration and mechanism of the fraud;
  • whether the fraud had taken place from the outset;
  • whether a genuine attempt had been made to 'trade out of' difficulties;
  • the defendant's co-operation with the authorities;
  • any guilty plea; and
  • the defendant's personal mitigation.

In Furr, the appellants were directors of a company involved in the writing of wills and execution of estates. Although founded as an honest business, losses had arisen through fraud committed by the second appellant and others before the first appellant joined it. He tried at first to address these losses, but eventually became a knowing participant in the fraud. Losses eventually totalled over £4 million and many vulnerable individuals lost out. He pleaded guilty early on and co-operated with the authorities, giving evidence for the prosecution in a related trial. Having admitted his guilt, he had waited four years to be sentenced. A sentence of 3 years and 9 months was reduced to 2½ years. The second appellant had been involved from the first and had pleaded guilty only very late in the day, although he too had given prosecution evidence at a related trial. In his case, a sentence of 4½ years was upheld.

Author: MH

March 2007

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

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

Author: MH

April 2007

B9.60 Damaging Disclosure of Defence Information: Specific Defences

It is argued in Blackstone's Criminal Practice 2007 that the reverse burden of proof purportedly imposed by the Official Secrets Act 1989, s. 2(3), might be open to challenge as incompatible with the ECHR, Article 6. This view has been vindicated by the decision of the Court of Appeal in Keogh [2007] EWCA Crim 528, in which it was held that the Act could operate effectively without the imposition of such reverse burdens, which accordingly were disproportionate and unjustifiable. Because those subsections, if given their natural meaning, are incompatible with Article 6, they should be 'read down' by applying a similar interpretation to that achieved by the Terrorism Act 2000, s. 118. See also B9.66 and F3.6.

Author: MH

April 2007

B9.66 Damaging Disclosure of International Relations Information: Specific Defences

It is argued in Blackstone's Criminal Practice 2007 that the reverse burden of proof purportedly imposed by the Official Secrets Act 1989, s. 3(4), might be open to challenge as incompatible with the ECHR, Article 6. This view has been vindicated by the decision of the Court of Appeal in Keogh [2007] EWCA Crim 528, in which it was held that the Act could operate effectively without the imposition of such reverse burdens, which accordingly were disproportionate and unjustifiable. Because those subsections, if given their natural meaning, are incompatible with Article 6, they should be 'read down' by applying a similar interpretation to that achieved by the Terrorism Act 2000, s. 118. See also B9.60 and F3.6.

Author: MH

March 2007

B10.2 Definition of Terrorism

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

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

At [26] to [27] he added:

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

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

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

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

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

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

Author: MH

April 2007

B10.2 Definition of Terrorism

Following its ruling in F [2007] EWCA Crim 243 (as to which see last month's update) the Court of Appeal has certified the following questions for possible consideration by the House of Lords (see F [2007] All ER (D) 27 (Mar)):

(1) In s. 1(4)(d) of the Terrorism Act 2000, are the words "government of a country other than the United Kingdom" restricted to representative or democratic governments?
(2) For the purposes of s. 58(3) of the Terrorism Act 2000, can it amount to a "reasonable excuse" for possession of a document containing information likely to be useful to a person committing or preparing an act of terrorism that the intended target is a tyrannical or dictatorial regime?

Author: MH

February 2007

B10.5 Procedure and Jurisdiction

A revised version of the Protocol relating to the management of terrorism cases has been issued. The revised version can be accessed here.

Author: MH

October 2006

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.

Author: MH

November 2006

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.

Author: MH

January 2007

B10.66 United Nations Measures

The Al-Qaida and Taliban (United Nations Measures) Order 2006 (SI 2006 No. 2952) amends the Al-Qa'ida and Taliban (United Nations Measures) Order 2002 (SI 2002 No. 111), revokes the amendment to that Order (SI 2002 No. 251) and imposes a series of new restrictions, principally restrictions arising from Treasury order or designation, which affect any dealings aimed at supporting Usama bin Laden or other designated persons.

The North Korea (United Nations Measures) Order 2006 (SI 2006 No. 2958) gives effect to UN Security Council Resolution 1718(2006). Under the Security Council Resolution, the Security Council or a committee of the Security Council can designate persons in respect of whom States are to take measures to impose financial restrictions. The measures include the freezing of funds, financial assets and economic resources of such persons and ensuring that any funds, financial assets and economic resources are not made available to them or for their benefit. The Security Council and the Committee can designate persons engaged in or providing support for North Korea's nuclear-related, other weapons of mass destruction-related and ballistic missile-related programmes, and persons acting on behalf of or at the direction of such persons. The Order empowers the Treasury to designate persons in line with the Security Council designations. Inter alia art. 6 prohibits any dealing with funds, financial assets and economic resources of designated persons. Article 7 prohibits making funds, financial assets or economic resources available to designated persons. Article 9 makes it a criminal offence to circumvent the prohibitions or to facilitate the commission of an offence relating to a prohibition. Article 10 provides a licensing procedure to enable, for humanitarian and other purposes, certain acts to be exempted from the prohibitions.

Author: MH

March 2007

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

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

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

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

Author: MH

May 2007

B10.96 Possession of an Article for Terrorist Purposes

B10.101 Collection of Information

Rowe [2007] EWCA Crim 635 was approved and M [2007] EWCA Crim 218 was once again disapproved in M (No. 2) [2007] EWCA Crim 970. The Court of Appeal rejected submissions that the decision in the first M appeal remained binding on the Crown Court unless reversed by the House of Lords.

Subject to any further ruling by the Court of Appeal or the House of Lords, whenever the construction and ambit of the Terrorism Act 2000, s. 57, arises for consideration in the Crown Court, Rowe is now the authority that must be followed. It was examined in last month's update.

Author: MH

April 2007

B10.101 Collection of Information

Just a few weeks after its ruling in M [2007] EWCA Crim 218, , the Court of Appeal in Rowe [2007] EWCA Crim 635 has radically reconsidered the relationship between the offence created by the Terrorism Act 2000, s. 57 (possession of an article for a purpose connected with the commission, preparation or instigation of an act of terrorism) and that created by s. 58 (collection recording or possession of document etc containing information likely to be useful to a terrorist). In M the court held that although documents containing information (including information stored on discs or USB storage devices etc) are 'articles', s. 58 (which unlike s. 57 does not refer to the instigation of terrorism) is not redundant because Parliament cannot have intended that s. 57 should apply to such documents.

In Rowe a five-judge court presided over by Lord Phillips CJ held that M was decided per incuriam because the reasoning adopted in that case did not reflect the written submissions prepared by the appellants for the appeal and had not been addressed by the Crown's written submissions. It was not even clear that it reflected oral argument advanced by the appellants. Furthermore the judgment was effectively extempore, being delivered the day after the hearing, so that the court had little time for reflection or research. The court in Rowe did not believe that M could have been decided in that way had the Crown been forewarned and able properly to deal with the issues.

There was in fact no basis for the conclusion that Parliament had intended to create a completely separate regime for documents and records from that which applied to other articles. As Lord Phillips CJ explained at [34] to [36]:

There is undoubtedly an overlap between sections 57 and 58, but it is not correct to suggest that if documents and records constitute articles for the purpose of section 57, 58 is almost superfluous. Collecting information, which falls within section 58 alone, may well not involve making a record of the information. Equally a person who possesses information likely to be useful to a person committing or preparing an act of terrorism may well not be in possession of it for a purpose connected with the commission, preparation or instigation of an act of terrorism.

Sections 57 and 58 are indeed dealing with different aspects of activities relating to terrorism. Section 57 is dealing with possessing articles for the purpose of terrorist acts. Section 58 is dealing with collecting or holding information that is of a kind likely to be useful to those involved in acts of terrorism. Section 57 includes a specific intention, section 58 does not.

These differences between the two sections are rational features of a statute whose aims include the prohibition of different types of support for and involvement, both direct and indirect, in terrorism . . .

The court in M had previously identified a point of law of general public importance for possible consideration by the House of Lords, namely, 'Is the possession of literature or other information in electronic and /or printed form caught by section 57 of The Terrorism Act 2000?'. The Court of Appeal in Rowe clearly felt that the error (if error it was) in M was too serious to remain uncorrected pending consideration of that question. It remains to be seen whether the Appellate Committee will indeed give leave for such an appeal.

Author: MH

September 2006

B10.145 Control Orders and the ECHR

In Re MB [2006] EWHC 1000 (Admin), Sullivan J examined the procedures established by the Prevention of Terrorism Act 2005, s. 3, relating to the supervision by the High Court of control orders made by the Home Secretary under s. 2 of that Act. He held the s. 3 procedure to be 'conspicuously unfair' and incompatible with the right to a fair hearing that is guaranteed under the ECHR, Article 6(1). A declaration to that effect was made pursuant to the Human Rights Act 1998, s. 4.

This ruling was reversed by the Court of Appeal (Civil Division) in Secretary of State for the Home Department v MB [2006] EWCA Civ 1140. When read in conjunction with the Prevention of Terrorism Act 2005, s. 11(2) (which was overlooked at first instance) the provisions for review by a court of the making of a non-derogating control order by the Secretary of State did indeed comply with the requirements of Article 6(1).

By way of contrast, the Court of Appeal in Secretary of State for the Home Department v JJ [2006] EWCA Civ 1141 upheld Sullivan J's ruling in In Re JJ (control orders) [2006] EWHC 1623 (Admin). This case concerned the content of orders imposed under s. 2 on asylum seekers who had been detained on national security grounds. The orders required the suspects to be confined for 18 hours per day in designated domestic residences, which would be subject to random searches at any time. They would be electronically tagged, and allowed only limited and controlled contact with other persons.

Sullivan J ruled that the cumulative impact of these orders were such as to deprive the persons in question of their liberty, contrary to the ECHR, Article 5(1). He also ruled that it was appropriate for him to quash the orders by virtue of s. 3(12) of the Act. The Court of Appeal agreed. Lord Phillips CJ concluded (at [27)):

We consider that the reasons given by Sullivan J for quashing the orders are compelling. There is a further reason. Paragraph 8 of the Schedule to the PTA gives the Secretary of State power, should he decide, in the absence of a derogation order, to make new control orders under section 2 to replace those that Sullivan J quashed. If the Secretary of State decides to exercise this power, he will have to devise a new package of obligations imposing controls on the respondents. This is an exercise that the Secretary of State is very much better placed to perform than the court.

Author: MH

June 2007

B10.146 Control Orders

The Prevention of Terrorism Act 2005, s. 1(4)(p), permits the Secretary of State to order an individual to comply with reporting obligations that would be specified by a person described in a control order. This means that the Secretary of State may confer on the contact officer the power to specify the reporting obligations: D [2007] EWCA Crim 1009.

Author: MH

April 2007

B10.172 Offences in relation to the Security of Pathogens and Toxins

The Part 7 of the Anti-terrorism, Crime and Security Act 2001 (Extension to Animal Pathogens) Order 2007 (SI 2007 No. 926) extends the effect of ss. 58 to 74 of the Act (duties on occupiers) to certain pathogens specified in a newly modified sch. 5 to the Act (set out as a schedule to the Order).

The Schedule 5 to the Anti-terrorism, Crime and Security Act 2001 (Modification) Order 2007 (SI 2007 No. 929) modifies sch. 5 inter alia by adding the viruses listed in art. 3, the rickettsiae listed in art. 4(b), the bacteria listed in art. 5, the fungi listed in art. 6 and the toxins listed in art. 7(2).

Author: MH

June 2007

B11.59 Intentionally Causing Harassment, Alarm of Distress: Place of Commission

A police cell is not a place which a person occupies as living accommodation, and cannot be classified as a dwelling or living accommodation for the purposes of the Public Order Act 1986, s. 4A (Francis [2006] EWCA Crim 3323).

Author: MH

February 2007

B11.79 Putting People in Fear of Violence: Procedure
B11.88 Offence of Harassment: Procedure

In Livesey [2006] EWCA Crim 3344, the Court of Appeal held that under the Protection from Harassment Act 1997, s. 4(5), a judge who rules that there is no case to answer on an indictment alleging an offence under s. 4 may nevertheless allow the case to proceed so that a jury may consider an alternative verdict of harassment, contrary to s. 2 of the Act. The latter offence is of course summary only, but as long as the judge does not immediately require the jury to return a directed acquittal on the s. 4 count, he may allow the trial to proceed and take the jury's verdict on the s. 2 alternative (applying Carson (1990) 92 Cr App R 236).

Carson, a decision concerning the Public Order Act 1986, s. 7(3), is noted in Blackstone's Criminal Practice 2007 at B11.32.

Author: MH

September 2007

B11.130 Unauthorised Demonstrations in Designated Areas

Litigation arising from the potential application of the Serious Organised Crime and Police Act 2005, ss. 132 to 138 to Brian Haw's permanent one-man demonstration in Parliament Square against the government's policy on Iraq rumbles on. In DPP v Haw [2007] EWHC 1931 (Admin) (the third such case to be reported) the prosecution appealed against Haw's acquittal on charges of breaking conditions imposed on his demonstration by the police. The Divisional Court confirmed that certain statutory powers given to the Metropolitan Police Commissioner by the SOCPA 2005, s. 134 could properly be exercised by a subordinate on his behalf, but this was of no immediate assistance to the prosecution because the court also agreed with the district judge's conclusion that there was no case to answer because the conditions in question were unworkable and unlawful. More carefully drafted conditions may now be imposed. The court warned Haw that he 'would be well advised to co-operate with the police' in respect of them.

Author: MH

April 2007

B11.139 Ticket Touts

The Violent Crime Reduction Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 858) brings into force, on 6 April 2007, s. 53 of the Act which amends the Criminal Justice and Public Order Act 1994, s. 166. The amendment's main effect is to widen the offence so that it may be committed by disposal of a ticket rather than merely by selling it or offering it for sale.

Author: MH

March 2007

B11.156 Racial and Religious Hatred and Aggravation

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

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

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

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

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

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

Author: MH

September 2007

B11.156 Racial and Religious Hatred and Aggravation

The Racial and Religious Hatred Act 2006 (Commencement No. 1) Order 2007 (SI 2007 No. 2490) brings the Act into force, on 1 October 2007, except insofar as it inserts a new s. 29B(3) into the Public Order Act 1986 and in respect of certain provisions of application only in Scotland.

Author: MH

April 2007

B11.224 Children and Alcohol

The Violent Crime Reduction Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 858) brings into force, on 6 April 2007, ss. 23 and 24 of the Act which relate to the new offence of persistently selling alcohol to children.

Author: MH

March 2007

B12 Offences Relating to Weapons

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

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

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

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

Author: MH

September 2006

B12.12 Imitation Firearms

In K v DPP [2006] EWHC 2183 (Admin), an assault was committed by the appellant, who pointed a plastic 'BB' (ball bearing) gun at the complainant and threatened to shoot him in the face. For this, he was convicted of possessing an imitation firearm with intent to cause fear of violence, contrary to the Firearms Act 1968, s. 16A, and his conviction was upheld on appeal.

The BB gun used by the appellant was essentially a plastic toy that fired plastic pellets at a much lower velocity than any air gun, but it was modelled on a real firearm and could under some circumstances have been mistaken for one. Clearly, therefore, this gun, or any other realistic toy gun, could in some circumstances become an imitation firearm. In K v DPP, however, everyone involved in the incident knew (and knew that everyone else knew) it was not a real weapon. The incident arose because the complainant was attempting to enforce a rule prohibiting the possession of BB guns in the hostel at which the appellant resided, and the appellant objected to giving his up.

The question for the court was whether a firearms offence (in this case an offence of) could be committed when there was no attempt or intent to imitate a firearm and no real possibility of mistake or confusion on the part of the victim or of any bystander. Its answer was that the justices who tried the case were entitled to examine the toy in court and conclude (as a matter of fact) that in appearance it resembled a real gun. Once they had so concluded, conviction was inevitable. The character of the object could not change merely because everyone knew at the time what it really was. That was merely something to be taken into account when sentencing.

The answer to this question must surely have been different had the court adopted a modern, purposive construction of the legislation. The clear purpose of the law governing misuse of imitation firearms is to prevent criminals intimidating victims, police officers or bystanders by pretending that these are real weapons. As Lord Bingham noted in Bentham [2005] UKHL 18:

While an imitation firearm lacks the capacity of a real, loaded firearm to kill or injure, it has much the same capacity to frighten and enforce compliance, not least because many imitations are almost indistinguishable from the real thing and those threatened have little opportunity or inclination to examine the nature of the weapon used: see R v Avis and others [1998] 1 Cr App R 420, 423. . .

Purposive construction of the legislation relating to imitation firearms had a notoriously 'bad press' in Bentham, but this was because the Court of Appeal's purposive approach in that case led them to conclude that B had been 'in possession' of an imitation firearm in the form of his own finger, which he had pointed from under an anorak, so as to resemble the barrel of a gun. For this it was roundly criticised by academic commentators and reversed by the House of Lords, who held that Parliament had not created any offence of merely pretending to possess a firearm. The offence charged was one of possessing an imitation firearm, but one cannot 'possess' one's own finger. The rules of statutory construction, said Lord Bingham:

have a valuable role when the meaning of a statutory provision is doubtful, but none where, as here, the meaning is plain. Purposive construction cannot be relied on to create an offence which Parliament has not created.

With respect, however, this need not have precluded the adoption of a purposive construction in respect of issues where some ambiguity does exist; and in K v DPP there was indeed room for different interpretations. The appearance of the relevant object at the time of the offence is what matters, but it lies in the eye of the beholder, and it appeared to everyone concerned that it was a toy. To put it another way, the fact that the object in question superficially resembled a firearm was, for all practical purposes, irrelevant at that time. If instead the appellant had brandished a toy catapult, or threatened to hit the complainant with a plastic cricket bat, his conduct would essentially have been similar, and no less threatening.

It follows that the charge brought under s 16A was wholly inappropriate on the facts of K v DPP, in which a charge of common assault would surely have sufficed.

Author: MH

April 2007

B12.38 Possessing or Distributing Prohibited Weapons or Ammunition

The Violent Crime Reduction Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 858) brings into force, on 6 April 2007, ss. 28 and 29 of the Act (using someone to mind a weapon).

Author: MH

8 August 2006

B12.52 Possession of firearm with intent to cause fear of violence

Goluchowski [2006] EWCA Crim 1972 holds that it is not necessary to establish the offence under s. 16A of the Firearms Act 1968 to show that a person in possession of a firearm or imitation firearm had an intent prior to its use to cause a person to believe that unlawful violence would be used against him or another person.

The defendant had an imitation firearm with him in a pub (a bb gun). He was found to have produced the weapon and to have uttered threats to a barman. His defence was a denial of having uttered threats. Counsel further argued that in order to commit the offence the person in possession of the weapon had to have had a prior intention to use it to cause his victim to fear that unlawful violence would be used against him. The Court rejected this interpretation. Possession is a continuing act. It is sufficient to prove that a person in possession formed an intention on the sudden to place another in fear. Authorities under other legislation, and in particular Ohlson v Hylton [1975] 1 WLR 724 are distinguished.

Author: LL

August 2007

B12.65 Contravention of Prohibition on Possession or Acquisition of Firearms by Persons under Specified Ages

The Violent Crime Reduction Act 2006 (Commencement No. 3) Order 2007 (SI 2007 No. 2180) brings into force, on 1 October 2007, inter alia s. 33 of the Act which amends ss. 22 and 24 of the Firearms Act 1968 so as to increase the age restrictions there mentioned from 17 to 18.

Author: MH

August 2007

B12.69 Transfer of Firearms to be in Person

The Violent Crime Reduction Act 2006 (Commencement No. 3) Order 2007 (SI 2007 No. 2180) brings into force, on 1 October 2007, inter alia s. 32 of the Act which requires that sales of air weapons must be face to face.

Author: MH

August 2007

B12.76 Business, Export and Transactions involving Firearms

The Violent Crime Reduction Act 2006 (Commencement No. 3) Order 2007 (SI 2007 No. 2180) brings into force, on 1 October 2007, inter alia s. 31(2) of the Act, which extends the restrictions on sales etc in s. 3 of the Firearms Act 1968 to air weapons, and ss. 36 to 40, which impose restrictions on th emanufacture, import and sale of realistic imitation firearms.

Author: MH

April 2007

B12.83 Offensive Weapons

The Violent Crime Reduction Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 858) brings into force, on 6 April 2007, ss. 28 and 29 of the Act (using someone to mind a weapon).

Author: MH

September 2007

B12.95 Offensive Weapons: Reasonable Excuse

In Archbold [2007] EWCA Crim 2137, D was in bed when C started to throw stones at his house and car, in breach of an ASBO. D called the police and then armed himself with a knife for protection before going out to confront C and await arrival of the police. C attacked him with a crowbar, upon which D stabbed and injured C with the knife. He was acquitted of unlawful wounding, to which he pleaded self-defence, but convicted of having an offensive weapon in public on the basis of the judge's direction that D could have had no lawful authority or reasonable excuse for carrying the knife even if had only intended to use it defensively.

Reasonable apprehension of imminent attack may be a lawful excuse for carrying a weapon (Evans v Hughes [1972] 3 All ER 412) but on appeal the Crown sought to support the judge's ruling by arguing that D had not faced such a threat because he could have locked himself indoors to await the police. In other words, D brought about the risk by going out to meet C (cf. Malnik v DPP [1989] Crim LR 451). This argument seems to have met with some sympathy in the Court of Appeal; but the court ultimately took the view that the judge had usurped the jury's role by withdrawing the issue from their consideration. It ought to have been left to the jury, and D's conviction was unsafe.

With respect, a citizen is surely entitled to confront any person attacking his property, without thereby being held responsible for 'creating' a dangerous situation. There is something very unattractive in the argument that a person who sees his car or other property attacked by vandals who may well become dangerous when confronted must either cower inside his house to await the police (who may or may not come in time) or go out unarmed. In such a case, the jury must of course decide whether D went out looking for trouble or whether he meant only to defend himself if attacked. In the latter case, it is submitted that he may indeed have a reasonable excuse for arming himself, and a jury should be directed accordingly.

Author: MH

February 2007

B12.96 Having Article with Blade or Point in a Public Place

The Violent Crime Reduction Act 2006 (Commencement No. 1) Order 2007 (SI 2007 No. 74) brings into force, on 12 February 2007, inter alia s. 42 of the Act, which provides for the maximum penalty for an offence under the Criminal Justice Act 1988, s. 139 to increase from two years' imprisonment to four years.

Author: MH

February 2007

B12.97 Having Article with Blade or Point on School Premises

The Violent Crime Reduction Act 2006 (Commencement No. 1) Order 2007 (SI 2007 No. 74) brings into force, on 12 February 2007, inter alia s. 42 of the Act, which provides for the maximum penalty for an offence under the Criminal Justice Act 1988, s. 139A to increase from two years' imprisonment to four years.

Author: MH

April 2007

B12.97 Having Article with Blade or Point on School Premises

The Violent Crime Reduction Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 858) brings into force, on 31 May 2007, ss. 45, 46 and 48 of the Act. Sections 45 and 46 give relevant members of staff a power to search school pupils and further education students for weapons. Section 48 amends the Criminal Justice Act 1988, s. 139B(1) so as to substitute 'suspecting' for 'believing'.

Author: MH

August 2007

B12.103 Sale or Letting on Hire of a Crossbow

The Violent Crime Reduction Act 2006 (Commencement No. 3) Order 2007 (SI 2007 No. 2180) brings into force, on 1 October 2007, inter alia s. 44 of the Act, which amends the Crossbows Act 1987, s. 1 so as to apply the restriction on sale etc to persons aged under 18.

Author: MH

August 2007

B12.104 Purchase or Hiring of a Crossbow

The Violent Crime Reduction Act 2006 (Commencement No. 3) Order 2007 (SI 2007 No. 2180) brings into force, on 1 October 2007, inter alia s. 44 of the Act, which amends the Crossbows Act 1987, s. 2 so as to apply the restriction on purchase or hiring to persons aged under 18.

Author: MH

August 2007

B12.106 Sale of Knives and Certain Articles with Blade or Point

The Violent Crime Reduction Act 2006 (Commencement No. 3) Order 2007 (SI 2007 No. 2180) brings into force, on 1 October 2007, inter alia s. 43(1) and (2) of the Act, which amends the Criminal Justice Act 1988, s. 141A so as to apply the restriction on sale etc to persons aged under 18.

Author: MH

May 2007

B13.69 Trespass on a Protected Site

The Serious Organised Crime and Police Act 2005 (Designated Sites under Section 128) Order 2007 (SI 2007 No. 930) designates 16 further sites (being government buildings and premises connected with the Royal family) for the purposes of s. 128 (summary offence of entering or being on any designated site as a trespasser). An amending Order (SI 2007 No. 1387) substitutes a new map for the area of one of those sites (Chequers).

Author: MH

July 2007

B14.99 Breach of Non-molestation or Restraining Orders

The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 9 and Transitional Provisions) Order 2007 (SI 2007 No. 1845) brings into force, on 1 July 2007, inter alia s. 1 of the Act and connected amendments and repeals. The commencement of s. 1 and associated provisions does not apply where a power of arrest under the Family Law Act 1996, s. 47 has been attached to a non-molestation order before 1 July 2007 unless that power of arrest no longer has effect.

Author: MH

10 August 2006

B15.1 Misconduct in public office

Boulanger v The Queen [2006] SCC 32 is an interesting decision on the residual offence of misconduct in public office. Although based on s. 122 of the Canadian Criminal Code, it is illuminating on the common-law offence and contains a full discussion of the relevant English and Commonwealth authorities. Boulanger was director of security for Varennes, Quebec. This was a public office. In the course of his duties, he instructed a constable, who had prepared a report into a vehicle accident in which his daughter was involved, to prepare a fuller report. As a result the appellant's daughter was shown not to be at fault. The appellant did not seek to influence the content of the report in any way. He was, nonetheless, convicted of misconduct in public office. Section 122 provides that a person commits an offence who, in connection with the duties of his office, commits fraud or breach of trust. This reproduces art. 121 of Stephen's Digest of Criminal Law relating to misfeasance in public office, but not art. 122 dealing with neglect.

The Supreme Court's discussion of the different elements of the two offences as they appear in the Canadian case law need not detain an English reader. It is clear from A-G's Ref (No. 3 of 2003) [2004] EWCA Crim 868 that wilful misconduct is required whether the offence sounds in misfeasance or failure to act. The Supreme Court's summary of the misfeasance offence is, however, clear and crisp and would, in England, apply to all variants of the common-law offence. McLachlin CJC per curiam sums them up as follows: "I conclude that the offence of breach of trust by a public officer will be established where the Crown proves beyond a reasonable doubt the following elements:

  1. The accused is an official;
  2. The accused was acting in connection with the duties of his or her office;
  3. The accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office;
  4. The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused's position of public trust; and
  5. The accused acted with the intention to use his or her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.

This summary is consistent with the A-G's Ref (No. 3 of 2003) at [61]. As with that case, the Supreme Court stresses that regard must be had to the responsibilities of the office-holder, the importance of the public office served, and the nature and extent of the departure from those responsibilities. In the result the Supreme Court concluded that the appellant lacked the mens rea for the offence, it not being enough that the exercise of his duty in fact conferred a collateral benefit upon his family, and further that the actus reus of the offence had not been made out.

Author: LL

April 2007

B15.18 Sentencing Guidelines

In A-G's Ref (No. 1 of 2007); Hardy [2007] EWCA Crim 760, the Court of Appeal has emphasised that where police officers and other officials with access to databases containing information regarding members of the public abuse their position and do so for profit, then not only must a deterrent prison sentence follow but it must be a severe one. Accessing information on a police computer involves deliberation and it must be made clear to such officers that, if they commit such offences, they face severe punishment, even in the face of substantial personal mitigation.

Author: MH

December 2006

B16.5 VAT Frauds

The scope of the offence created by the Value Added Tax Act 1994, s. 72, was examined by the Court of Appeal in Hashash [2006] EWCA Crim 2518, in the course of which an issue arose as to the proper construction of the Sixth Council Directive (EEC) 77/388 on the harmonisation of the laws of member states relating to turnover taxes and the applicability of the term 'economic activity' in Article 4(1) of the Directive.

The appellant was alleged to be a party to a 'carousel' or 'missing trader' fraud, in which the fraudster's objective is not to buy and sell goods in the ordinary course of business, but to put himself in a position to receive VAT payments for which he has no intention of accounting. The goods, if they exist at all, are no more than a token, necessary to lend verisimilitude to the transactions. In this case, the prosecution had argued that no goods changed hands.

Having considered recent decisions of the European Court of Justice in Halifax plc v Customs and Excise Commissioners [2006] Ch 387 and Optigen Ltd v Revenue and Customs Commissioners [2006] Ch 218, the Court of Appeal concluded (for the purpose of confiscation proceedings against the appellant) that liability for payment of VAT may arise even in respect of fraudulent transactions involving non-existent goods, and rejected the appellant's argument to the contrary.

Although manfestly illegal activities such as the supply of narcotic drugs or counterfeit currency falls outside the scope of the Sixth Directive and cannot be subject to VAT, the position is different where the transactions are ostensibly lawful, irrespective of whether any particular trader is acting fraudulently or not. In the present case, there were invoices and delivery notes which purported to prove the sale and of the transfer of title in goods (computers and computer parts) which may be traded legitimately. Money transfers were made as part of these sale and purchase transactions. Viewed objectively, therefore, the transactions to which the appellant and his company were parties were subject to VAT. It followed on the facts that the appellant was properly convicted of the offence of being knowingly concerned in the fraudulent evasion of VAT, contrary to s. 72(l).

Author: MH

January 2007

B16.13 Sentencing Guidelines

Guidance as to sentencing in substantial revenue fraud cases was provided in A-G's Refs (Nos. 88, 89,90 and 91 of 2006); Meehan [2006] EWCA Crim 3254. The offenders in these cases had each controlled companies used as 'buffer companies' in the course of a multi-million pound 'missing trader' VAT frauds, and had made large profits, but had not themselves been centrally involved in the organisation of the frauds.

The court held that those who organised fraudulent activity on such a scale could and should expect sentences well into double figures; but the offenders in this case were not the organisers and the appropriate sentencing bracket in such cases was seven to eight years' imprisonment for those who had been involved for a long period. A sentence of three years was held to be appropriate for one who had been involved for a much shorter period (only one month) and had profited to a much smaller extent.

The court further held that disqualification orders should also be imposed where company directors have involved their companies in dishonest fraudulent activity of a significant sort.

Author: MH

July 2007

B16.14 Social Security Frauds

King v Kerrier District Council [2006] EWHC 500 (Admin) was approved in Passmore [2007] All ER (D) 178 (Jun), in which it was held that D, who was in receipt of benefits, could not commit any offence under the Social Security Administration Act 1992, s. 111A(1A) (or s. 112(1A)), merely by failing to disclose that he had formed a registered company, because he had received no income from that company and accordingly it made no difference to the amount of benefit to which he was entitled. The formation of the company was not in itself a circumstance which he was required to disclose.

Author: MH

February 2007

B18.4 Sentencing for Offences under the Computer Misuse Act 1990

In Waters [2007] EWCA Crim 222, a sentence of four months' imprisonment was upheld in respect of a defendant, aged 67 and of previous good character, who had conspired to install surveillance software ('spyware') on his wife's computer because he wrongly suspected that she had concealed her true assets from him during divorce proceedings.

The Court of Appeal recognised that his offending was 'far from the top of the range', but computers were an established part of modern life, and an increasing amount of information relating to individuals was held on them. Individuals' privacy had to be protected from intrusion and it followed that deterrence was an appropriate element in sentencing in cases involving offences of this kind.

Author: MH

March 2007

B19.41 Malicious Communications

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

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

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

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

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

Author: MH

October 2006

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."

Author: MH

January 2007

B20.5 Meaning of 'Controlled Drug'

The Misuse of Drugs Act 1971 (Amendment) Order 2006 (SI 2006 No. 3331) amends parts 1 and 2 of sch. 2 to the Act with the effect of reclassifying methylamphetamine as a Class A drug with effect from 18 January 2007. It was previously a Class B drug.

Author: MH

September 2006

B20.22 The Misuse of Drugs Regulations 2001

The Misuse of Drugs (Amendment No. 3) Regulations 2006 (SI 2006 No. 2178) amend the Misuse of Drugs Regulations 2001 to correct defects in the amendments made by the Misuse of Drugs (Amendment No. 2) Regulations 2006 (SI 2006 No. 1450). The (Amendment No. 2) Regulations omitted to exclude veterinary prescriptions from the additional requirements it imposed; the (Amendment No. 3) correct that omission.

Author: MH

August 2007

B20.22 The Misuse of Drugs Regulations 2001

The Misuse of Drugs and Misuse of Drugs (Safe Custody) (Amendment) Regualtions 2007 (SI 2007 No. 2154) make a series of minor amendments to the 2001 Regulations and reclassify the drug Midazolam.

Author: MH

March 2007

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

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

Author: MH

April 2007

B22.3 Money Laundering and Criminal Property

Gabriel [2006] EWCA Crim 229, and Loizou [2005] 2 Cr App R 618 must now be construed in light of the Court of Appeal's ruling in K (appeal under s. 58 of the Criminal Justice Act 2003) [2007] EWCA Crim 491. It was held in that case that if D fraudulently under-declares his profits with the result that he deprives the public revenue of tax, he thereby obtains, in respect of the relevant period, a pecuniary advantage which is derived from cheating the public revenue and this may be a 'benefit' within the meaning of the Proceeds of Crime Act 2002, s. 340(3)(a), although this benefit can become criminal property only once a false declaration has been made.

Author: MH

March 2007

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

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

Author: MH

March 2007

B22.15 Money Laundering, Stolen Goods and Wrongful Credits

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

Author: MH

December 2006

B23.6 Entering the UK without a Passport etc

Thet v DPP [2006] EWHC 2701 (Admin) establishes that an asylum seeker who has entered the UK on a false passport may have a defence to a charge under the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s. 2(1) (failing to produce a valid passport etc. at a leave or asylum interview) on the basis that the passport he used was false, even if he is not able to produce that false passport in order to satisfy the defence provided by s. 2(4)(d).

The appellant in this case satisfied the court that it had been impossible for him to obtain a passport in his country of origin. He therefore, 'clearly had a reasonable excuse for not providing a genuine immigration document within three days of his asylum interview'. In those circumstances, he had a valid defence to the charge.

Lord Phillips CJ recognised that this ruling might cause difficulties for the immigration authorities:

As to the submission . . . that this interpretation will undermine the object of section 2, I fear that to some extent it may do so. Insofar as it does not achieve the object with which it was enacted, the reason is that the draftmanship of the section leaves much to be desired. But the result reached by my interpretation is not an absurdity in as much as the section, as I would read it, is nonetheless calculated to assist the immigration authorities to determine the country from which an immigrant has come and to deal with the problem of the immigrant who simply destroys all documents and declines to give any information as to his country of origin. The reason for this is that to rely on the defence of reasonable excuse for not being in possession of a valid immigration document, the immigrant is likely to have to establish the country from which he has come. This case is an example of that requirement being satisfied. The defence under (4)(d) requires not merely the production of a false immigration document, but again proof that that document has been used for all purposes in connection with the journey from beginning to end, and again that latter requirement, coupled with the production of the document, will assist to determine the country of origin.

Author: MH

December 2006

B23.10 Assisting Unlawful Immigration

The ambit of the offence under the Immigration Act 1971, s. 25, was examined in Rechack [2006] EWCA Crim 2975. The appellant, a French citizen, purchased (in France) ferry tickets to England for himself and another man, Manun, who was traveling on a false passport. On arrival, he falsely informed the immigration authorities that Manun was his cousin. Both acts were relied upon by the prosecution as giving rise to an offence under s. 25(1); but, since the appellant was not a British citizen etc., the acts done in France could not fall within English jurisdiction (see s. 25(5)).

As to the lies told to immigration officers, Gage LJ said:

It is, in our judgment, possible that that act could found an act evidencing 'the carrying out of arrangements for securing or facilitating' Manun's entry into the United Kingdom, but, in our judgment, it would need a careful direction from the recorder as to how the jury could arrive at such a conclusion. Furthermore, it would require in this case all the jury to be satisfied that it was that act which they had relied on. There is, of course, no way now in which this court can tell whether the jury found the first act proved or the second act or both of them proved. It follows that we cannot be satisfied that even if the count had been drawn under section 25 as it was in its old form that the appellant would have been convicted. Accordingly, this conviction must be quashed . . .

Author: MH

February 2007

B23.26 Trafficking for Sexual Exploitation: Sentencing

The Violent Crime Reduction Act 2006 (Commencement No. 1) Order 2007 (SI 2007 No. 74) brings into force, on 12 February 2007, inter alia s. 54 of and sch. 4 to the Act, which make provision for the forfeiture and detention of land vehicles, ships and aircraft where a person is convicted of a trafficking offence under the Sexual Offences Act 2003, s. 57.

Author: MH

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