Companion Website

D1.1 Police Powers in Investigation of Crime

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

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

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

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

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

Author: MH

D1.2 Power to Stop and Search

The Police and Justice Act 2006 (Commencement No. 2, Transitional and Saving Provisions) Order 2007 (SI 2007 No. 709) brings into force, on 1 April 2007, s. 12 of the Act. Section 12 amends the Aviation Security Act 1982 to provide a power of stop and search for a constable at an aerodrome.

Author: MH

D1.6 Power to Stop and Search

The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) Order 2006 (SI 2006 No. 2165) brings into operation, on 31 August 2006, a revision of para. 4 of Code A (exercise of statutory powers of stop and search and requirements to record public encounters). The revision pertains to the recording requirements enables constables of the British Transport Police operating from certain specified locations to provide an electronic receipt rather than a full record when they undertake a stop or a stop and search. A full record will be made available to the person at a later time. In consequence of the revision, the applicable Notes for Guidance are revised and a new Annex D (use of an electronic receipt as an interim record of a stop or stop and search) is inserted.

Author: MH

D1.42 The Decision to Detain or Release

The Police and Justice Act 2006 (Commencement No. 1, Transitional and Saving Provisions) Order 2006 (SI 2006 No. 3364) brings into force s. 11 of the Act on 15 January 2007. Section 11 amends the Police and Criminal Evidence Act 1984, s. 37(7)(a) so as to permit a person to be held in detention pending the decision of the DPP as to whether there is sufficient evidence to charge him.

In R (G) v Chief Constable of West Yorkshire Police [2006] EWHC 3485 (Admin), the Divisional Court attempted to clarify the power of a custody officer to detain a suspect whilst seeking advice from the Crown Prosecution Service as to the decision to charge. By the Police and Criminal Evidence Act 1984, s. 37 (as amended by the Criminal Justice Act 2003, but prior to further amendment by the Police and Justice Act 2006, s. 11):

(7) if the custody officer determines that he has before him sufficient evidence to charge the person arrested with the offence for which he was arrested, the person arrested -

shall be released without charge and on bail for the purpose of enabling the Director of Public Prosecutions to make a decision under section 37B below,

shall be released without charge and on bail but not for that purpose,

shall be released without charge and without bail, or

shall be charged.

(7A) The decision as to how a person is to be dealt with under subsection (7) above shall be that of the custody officer.

(7B) Where a person is released under subsection (7)(a) above, it shall be the duty of the custody officer to inform him that he is being released to enable the Director of Public Prosecutions to make a decision under section 37B below.

As of 15 January 2007, s. 37(7)(a) now permits the person arrested to be released without charge and on bail, or kept in police detention, for the purpose of enabling the DPP to make a decision under s. 37B.

Because the amended version of s. 37(7)(a) was not in force when this case was decided, the court was required to construe the earlier version of that provision. It held that it was lawful for the claimant to be detained for a reasonably short period (three hours in this case) while advice on charges was obtained from the CPS.

Collins J said (at [19] to [22]:

The effect of what the custody officer did was, in my view, to seek advice in deciding whether there was sufficient evidence. That has always been regarded as proper and was so regarded under the unamended Police and Criminal Evidence Act. Custody officers would routinely seek advice, whether from senior colleagues, from lawyers or from looking at law books. That approach is not only still lawful but now there is an obligation to seek advice from the CPS. Thus the amendment in the 2006 Act was in my view unnecessary since a sensible construction of the Act gives the necessary role to the CPS and ensures that charging decisions are, unless there are good reasons why the advice cannot be obtained, on advice from and so determined by the CPS . . .

There may be circumstances where the custody officer, because he is unable perhaps to obtain the necessary advice, does have to form his own view and, as is clear, under the Act the only proper trigger for use of the section 37(7) powers is his determination that there is sufficient evidence to charge for the offence for which the suspect was arrested . . .

While I have accepted that the power exists without the need for the amendment in the 2006 Act to seek advice after the sufficiency of evidence test has been met, I am clearly of the view that it is more appropriate to seek the advice of the Crown Prosecutor before making the determination of sufficiency of evidence, particularly as that determination relates only to the charge for which the suspect was arrested and it may well be, and no doubt frequently is, the case that that turns out not to be an appropriate charge when fuller evidence is obtained or the suspect has told his side of the story in interview. That being so, it is in my view unnecessary and perhaps undesirable for the custody officer to make that determination before seeking advice. He can in due course charge for any offence which is appropriate and indeed must follow the advice given by the Crown Prosecution Service. I recognise that this leaves a lesser role for section 37B since it applies in terms only to a person released on bail under section 37(7)(a). But the approach indicated by section 37B is in any event being applied since the guidance can and does require all necessary information to be provided to the Crown Prosecutor and obliges the custody officer to comply with the Crown Prosecutor's decision.

Author: MH

D1.73 Testing for Presence of Class A Drugs

The Criminal Justice and Court Services Act 2000 (Amendment) Order 2007 (SI 2007 No. 2171) corrects omissions in the consequential amendments made by the Fraud Act 2006 to the Criminal Justice and Courts Services Act 2000, sch. 6 (trigger offences for the purposes of drug testing under the PACE 1984, s. 63B).

Author: MH

D1.75 Testing for Presence of Class A Drugs

The Drugs Act 2005 (Commencement No. 5) Order 2007 (SI 2007 No. 562) brings the following provisions of the Act fully into force on 1 April 2007:

s. 4 (drug offence searches: Northern Ireland);
s. 6 (X-rays and ultrasound scans: Northern Ireland);
s. 10 (follow-up assessment);
s. 11 (requirements under sections 9 and 10: supplemental);
s. 13 (arrangements for follow-up assessment); and
s. 14 (attendance at follow-up assessment);
s. 11 (requirements under sections 9 and 10: supplemental);
s. 15 (disclosure of information about assessments);
s. 16 (samples submitted for further analysis); and
s. 17 (relationship with Bail Act 1976 etc).

Author: MH

D1.77 Warrant Issued by a Justice of the Peace

The Violent Crime Reduction Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 858) brings into force, on 31 May 2007, ss. 58 of the Act. Section 58 inserts a new s. 96B into the Sexual Offences Act 2003 which provides a power of entry and search of the home of a person who is subject to notification requirements under part 2 of the 2003 Act (i.e. a registered sexual offender).

Author: MH

D1.102 Interception of Communications and Surveillance of Premises

Covert recordings of telephone conversations and prison visits involving a remand prisoner were held to be admissible in Kelly [2007] EWCA Crim 1715. It would seem that the interceptions were made within the prison, with the consent of the governor, and did not involve any interference with a public telecommunications system.

The surveillance operation was found to have been lawfully conducted in accordance with the Code of Practice on Covert Surveillance. The Court of Apeal rejected arguments that the prison governer had not been fully informed of the purpose of the surveillance and interceptions, or that its use at D's trial would be unfair.

Author: MH

D1.102 Interception of Communications and Surveillance of Premises

The Regulation of Investigatory Powers Act 2000 (Commencement No. 4) Order 2007 (SI 2007 No. 2196) brings part 3 of the Act (ss. 49 to 56 and sch. 2) into force on 1 October 2007. Part 3 concerns the investigation of electronic data protected by encryption. The Order also brings into force those parts of part 4 which concern the scrutiny of the powers in part 3 and the issue of relevant codes of practice.

Author: MH

D1.109 Interrogation of Suspects

The obligation to caution and the scope of the Police and Criminal Evidence Act 1984, s. 67(9) were considered by the Court of Appeal in Devani [2007] EWCA Crim 1926. D, a young solicitor, was observed by prison operational support officers during a visit to a client who was on remand for attempted murder. CCTV images appeared to show the client passing her two envelopes. She was challenged over this, and questions were put to her first by the officers, and later by a more senior prison officer in the presence of an experienced partner from her firm, who happened to be visiting another client at the time, but she was still not cautioned. It transpired that one of the letters was addressed to the client's co-defendant and contained plans to fabricate evidence. She was charged with an attempt to pervert the course of justice.

The trial judge rejected an application to exclude the evidence of the three prison officers pursuant to the Police and Criminal Evidence Act 1984, s. 78 for alleged breaches of Code C, para. 10.1. Dismissing her appeal against conviction, the Court of Appeal ruled that the prison officer did, but the support officers did not, fall within s. 67(9) so as to be directly subject to the PACE Codes. When the support officers first challenged her, it was in any case too soon in the process of observing, and drawing possible conclusions, for an obligation caution to have arisen. They did not at that stage have sufficient grounds to suspect an offence so as to trigger the obligation to caution before questioning.

As for the subsequent failure to caution, the trial judge held that D had not been prejudiced by this, given the status and the experience of D herself and, in particular, the presence by her side of her principal, an extremely experienced legal practitioner.

Contrast Miller [2007] All ER (D) 146 (Jul).

Author: MH

D1.143 Judicial Review of the Decision to Prosecute

R (Dennis) v DPP [2006] EWHC 3211 (Admin) provides an example of circumstances in which a decision by the CPS not to prosecute might successfully be challenged by judicial review. The deceased, a young man who had recently started work in the building trade, fell to his death through a skylight from the roof of a commercial buiding that was being renovated. A coroner's jury returned a verdict of unlawful killing but, having reviewed the evidence, the CPS decided that a prosecution for manslaughter would not be appropriate The CPS view was that although his employers owed a duty of care towards the deceased and were in breach of that duty, the degree of negligence exhibited was not such as to amount to criminal negligence.

The applicants (parents of the deceased) disputed this on the basis that the CPS had not dealt with the real thrust of any case that might be brought against the employers, and on the basis that no clear reasons had been given as to why the inquest jury's verdict should not have led to a prosecution. The court agreed. Having reviewed the authorities, Waller LJ said:

First, if it can be demonstrated on an objective appraisal of the case that a serious point or serious points supporting a prosecution have not been considered, that will give a ground for ordering reconsideration of the decision. Second, if it can be demonstrated that in a significant area a conclusion as to what the evidence is to support a prosecution is irrational, that will provide a ground. Third, the points have to be such as to make it seriously arguable that the decision would otherwise be different, but the decision is one for the prosecutor and not for this court. Indeed it is important to bear that fact in mind at all stages. Fourth, where an inquest jury has found unlawful killing, the reasons why a prosecution should not follow need to be clearly expressed.

His lordship added that he was by no means prejudging the final decision, which remained one for the CPS, once the matters identified had been taken into account.

Author: MH

18 October 2006

D1.154 Simple Cautions

The Divisional Court in R (Mondelly) v Commissioner of Police for the Metropolis [2006] EWHC 2370 (Admin) has given a full analysis of the situation where, in relation to the issue of a caution, policy guidance and police discretion collide.

Police officers investigating a burglary went to M's address by mistake. While they were there, they detected the smell of cannabis. They arrested M for allowing his premises to be used for the smoking of cannabis contrary to s. 8(d) of the Misuse of Drugs Act 1971. At the police station it was decided that he should not be charged under s. 8(d). However, M agreed to accept a caution for possession of a class C drug. M subsequently argued that the caution was administered in breach of relevant police policy and/or that it was Wednesbury irrational to administer the caution in the circumstances. Moses LJ, with whom Ouseley J agreed, dismissed this claim.

Four policy statements were particularly relevant in this case:

Metropolitan Police Service Notice 3/2004 ("Policing of Cannabis as a Class C Drug"), which stated that, "A police officer, finding a person in possession of cannabis, who is satisfied that the drug is intended for that person's own use should not arrest the offender unless aggravating factors apply. The drug must be seized but no further action should be taken in respect of the offence, other than administrative procedures identified in the SOP [Standard Operating Procedures]." The notice added that, "This policy is not intended to interfere with the discretion of a police officer, but to provide direction and focus towards governmental and policing priorities".
The 'Standard Operating Procedures' (disclosed for the purposes of the litigation), which provided that "the presumption should be against using [the] power of arrest for adults found in possession of cannabis. There will be exceptions to this general rule, notably young people". The SOP also noted that arrest might be appropriate in the case of 'open or repeated use' or where the use of cannabis was relevant to a 'locally identified policing problem'.
National guidance issued by the Association of Chief Police Officers (ACPO) in September 2003, in a document entitled "Cannabis Enforcement Guidance", which noted that, despite its re-classification from class B to class C, possession of cannabis remained an arrestable offence, "the presumption should be against using this power for simple possession offences".
Home Office Circular 05/2005, which referred to the ACPO Guidelines as being directed to ensuring that:

"Those who flagrantly disregard the law (e.g. smoking cannabis in a public place),
Those known locally to be repeatedly dealt with for possession of cannabis (repeat offending),
Those whose use of cannabis causes or threatens to cause public order problem, and
Those in possession of cannabis in or near premises where young people are present and vulnerable. . . are dealt with appropriately - e.g. arrested, followed by a caution or prosecution. It is expected though that, for most offences of cannabis possession, a police warning and confiscation of the drug will be sufficient."

Moses LJ reviewed relevant case law, including Chief Constable of the Kent County Constabulary, ex parte L (a minor) [1993] 1 ALL ER 756, where two juveniles challenged the decision to prosecute them. In that case, Watkins LJ said (at p. 770D-E) that:

". . . in respect of juveniles, the discretion of the CPS to continue or discontinue criminal proceedings is reviewable by this court but only where it can be demonstrated that the decision was made regardless of or clearly contrary to a settled policy of the Director of Public Prosecutions evolved in the public interest, for example the policy of cautioning juveniles, a policy which the CPS are bound to apply, where appropriate, to the exercise of their discretion to continue or discontinue criminal proceedings. But I envisage that it would be only rarely that a defendant could succeed in showing that a decision was fatally flawed in such a manner as that."

In Metropolitan Police Commissioner, ex parte P (1996) 8 Admin LR 6, a case involving a 12-year-old juvenile, Simon Brown LJ said that, "This court can properly intervene if a caution is administered in clear breach of the guidelines set out in the Home Office circular" but qualified this conclusion as follows (at p. 371 E): "I do not say that the court invariably would intervene in such circumstances. That must always be a matter for its undoubted discretion. But a clear breach would, in my judgement, bring the case properly within the purview of the court's supervisory jurisdiction". He concluded that nothing in his judgment was "intended to offer any sort of general encouragement to those cautioned to challenge the legality of their cautions. . . .in broad terms police officers responsible for applying this circular must enjoy a wide margin of appreciation to the nature of the case and whether the preconditions for a caution are satisfied" (p. 375E).

In the instant case, Moses LJ concluded (at [43]) that the authorities established (i) the reluctance of the courts to intervene in relation to decisions to prosecute, even in the case of juveniles; (ii) the reluctance of the courts to intervene in relation to the administration of cautions; (iii) a refusal to intervene save where the policy which it is suggested has been breached is 'clear and settled' and the breach is itself established.

Applying these principles, Moses LJ noted that there was no clear policy precluding arrest, caution or prosecution for simple possession of cannabis on which anyone found in possession of cannabis can rely. In particular, his lordship pointed out (at [52]) that Notice 3/2004 (quoted above) expressly provides that it is not intended to interfere with the discretion of the police officer. His lordship also held that "there is nothing in the arrest policy which states that it is applicable to cautioning or prosecution after arrest. A policy on arrest, based on its own rationale and hedged about with the maintenance of a constable's discretion as it is, cannot sensibly be interpreted as a policy which prohibits cautions or prosecution" (at [53]). His lordship concluded (at [56]) that there was "no clear and settled policy not to arrest or prosecute for simple possession of cannabis. The absence of any such clear and settled policy is fatal to the claimant's case".

His lordship nonetheless went on to consider matters of policy. He said (at [59]) that, "Consistency is, doubtless, an admirable goal but the width of judgement open to each officer is such as to produce an absence of uniformity". He went on (at [60]) to hold that:

"It is important to bear in mind the wide scope for judgement a police officer may exercise when considering whether to caution or not . . . the mere fact that one inspector takes a harsh view and another does not, does not begin to justify an assertion of Wednesbury unreasonableness. No one who breaks the law can be heard to complain because some have been prosecuted and others have not. Police forces across the country should aim for consistency but so various are the different factual considerations, so wide the margin for judgement a public law challenge on the grounds of inconsistency is not to be contemplated".

Perhaps conscious of the basis of the dissenting judgement of Walker J, Moses LJ added (at [62]), that if M had refused to accept a caution, "it would have been a matter for the CPS to decide whether to prosecute or not. In my view, provided they had properly considered the evidential and public interest requirements, a prosecution would have been permissible".

Walker J (dissenting) took issue in particular with Moses LJ's concluding comment about a prosecution being permissible on the facts of the instant case. His lordship held that it was unjust that M should have received a caution, and the accompanying criminal record, in circumstances where, if the arresting officers had not been mistaken, they would have applied the policy - with the result that there would have been no arrest, no caution, and no accompanying criminal record. His lordship went on to say that if M had been prosecuted rather than cautioned, he would have been able to seek a remedy against that injustice by asking the criminal court to stay the proceedings as an abuse of process. Disagreeing with Moses LJ and Ouseley J, Walker J said that, "In the absence of any rational reason for not applying the policy, there would have been strong grounds to urge the criminal court to grant a stay". It was, he said, unjust that M should have received a caution, and the accompanying criminal record, when there would have been 'strong grounds' for stopping the case as an abuse of process if the case had gone to trial (see [67] and [115]). At [78], Walker J, said that, "It is difficult to see why, merely because the police decided to caution rather than to prosecute, the citizen should have any less protection from the courts" (a point repeated at [114]).

Walker J (at [75]) identified a number of potentially serious consequences for an individual who has been wrongly cautioned. Those of general application include:

The fact of a previous caution may influence the decision whether or not to prosecute if, in future, the police think he has done something criminal.
If in a later prosecution he claims to be innocent, the caution may place him at a disadvantage, since the prosecution can, in an appropriate case, apply to rely on the previous caution to support their case that he is guilty of the new alleged offence. Even if they do not do this, the court may, in an appropriate case, refuse to allow him to present himself as a person of good character in support of his case that he is innocent of the new alleged offence.
The caution may be cited if, on a later occasion, he is convicted of an offence by a court - in which event it may be an aggravating factor when the court determines the sentence on that later occasion.

Walker J then addressed the argument that a policy not to prosecute for simple possession of cannabis would be unlawful. His lordship observed (as had Moses LJ) that the Police Service Notice rightly recognised that any decision on whether to prosecute for possession of cannabis is a matter for the CPS. However, his lordship said that, in practical terms, the policy on arrest meant that, in general, there would be no prosecution of those who possess cannabis without there being one of the aggravating features identified in the policy. His lordship said (at [111]) that "The policy and its diversion of offenders from the prosecution process find ample legal support in the rational nature of the reasons which underlie the policy and the governmental and parliamentary processes which ensured scrutiny of the policy before it was put in place".

The majority found that there was no clear and settled policy that those in possession of cannabis should not be arrested and, if appropriate, cautioned, and that M therefore had no ground for complaint. Walker J, on the other hand, found that there was such a clear and settled policy and that M had suffered injustice from the fact that the policy was not applied to him.

M's arrest was for an offence not covered by the policy (allowing his premises to be used for smoking cannabis, rather than simple possession of that drug). However, it may be argued that once that offence fell away, he should have been treated as a person who had been found in possession of cannabis in his own home - this offence would not have resulted in his arrest and, by extension, he would not have been cautioned for that offence (since a caution would follow arrest).

The majority view in this case was a person who admits an offence cannot properly complain if he suffers a sanction as a result of that offence. Walker J's dissenting position is perhaps more principled: M may have felt little option but to accept the caution, and cautions do have a potentially significant effect if an individual comes to the attention of the police subsequently.

Click here for the full text of the judgment

Author: PHW

July 2007

D1.155 Conditional Cautions

The Police and Justice Act 2006 (Commencement No. 3) Order 2007 (SI 2007 No. 1614) brings into force on 29 June 2007 inter alia s. 18 of the Act which inserts a new s. 24A into the Criminal Justice Act 2003. Section 24A provides for powers of arrest where there is a failure to comply with a conditional caution.

Author: MH

D1.167 Fixed Penalty Notices

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

Author: MH

D2.49 Crown Prosecution Service

The Police and Justice Act 2006 (Commencement No. 1, Transitional and Saving Provisions) (Amendment) Order 2007 (SI 2007 No. 29) amends the principal Order (SI 2006 No. 3364) so as to bring into force sch. 14, para 10 on 15 January 2007. Paragraph 10 amends the procedure to be adopted under the Police and Criminal Evidence Act 1984, s. 37B.

Author: MH

D2.64 Abuse of Process: Power to Stay Proceedings

In SL [2006] EWCA Crim 1902, the Court of Appeal held that it is neither an abuse of process nor unreasonable for the Crown to bring criminal proceedings against a parent for the death of a child where the family court, in care proceedings relating to another child of the family, has not attributed blame to one parent as against the other. A child, Ethan, was found dead in circumstances which precluded attribution of death to natural causes. In care proceedings relating to a surviving child, Jamie, Hedley J did not find that either the father or the mother was responsible for the death of the child. There was, however, evidence that pointed to the father as the parent responsible. The Crown brought proceedings against him and he was convicted of manslaughter. At trial before Beatson J, it was argued that it was an abuse of process for the criminal trial to take place or, in the alternative, unreasonable for such proceedings to be brought having regard to the decision in the care proceedings. The appellant argued that his conviction for manslaughter was inconsistent with the conclusion of Hedley J that he could not say, in the care proceedings, whether Ethan's death was homicide or if it was that it was the appellant, rather than his partner, who was responsible and that this inconsistency was an affront to public justice.

The Court of Appeal, following a careful review of the authorities, concluded that Beatson J had been correct to allow the prosecution to proceed. The decision in the care proceedings was not and could not be a final determination of the criminal proceedings. It could not give rise to double jeopardy or issue estoppel. Even had Hedley J invited the Crown to attend the care proceedings as an interested party and had said (as he did not) that he intended his decision finally to decide the outcome of all proceedings involving the appellant, such observations would not bind the criminal court. The Crown was entitled not to accept Hedley J's reservations as to whether Ethan's death was a homicide and, having reflected on Hedley J's judgment and the public interest test for prosecution, to bring proceedings for manslaughter. The ultimate responsibility for bringing criminal proceedings lies on the Crown. Its decision to do so could not amount to an affront to public justice. The Court did state however (at [64]) that the Crown may be required by the trial judge to provide an explanation of its decision to bring proceedings.

The Court went on to address the desirability of avoiding problems arising from contemporaneous civil and criminal proceedings in respect of the same matter. The Court states (at [73]):

We emphasise however, that because procedural and evidential difficulties can arise when there are in existence parallel care proceedings in respect of a child and criminal proceedings against a person connected with that child in respect of a serious offence against the child (or any person connected with the child), it is essential that there should be close liaison between the local Social Services Authority conducting the care proceedings and the Crown Prosecution Service. Wherever possible, linked criminal and care directions hearings should take place as the cases progress.

Author: LL

D2.68 Abuse of Process: Delay

D2.76 Losing or Destroying Evidence

As to the power of a court to stay proceedings in circumstances where delay and lost evidence may make a fair trial impossible (and the need for clear and careful directions where the judge concludes that a fair trial remains possible), see Ali [2007] EWCA Crim 691.

Author: MH

31 October 2006

D2.74 Abuse of process: Delay

J [2006] All ER (D) 321 (Oct) is another example of the reluctance of the Court of Appeal to stay the prosecution of historic sex abuse cases on grounds of abuse of process.

The accused was charged with the sexual abuse of his four nephews over a period of 18 months to two years before 1993. A complaint alleging such abuse was not made to one of the victims' parents until 2005. The accused complained that he could not have a fair trial on the basis that the lapse of time meant that he could no more than deny the offences. The trial judge refused a motion to stay the prosecution.

On appeal the Court held that the residual discretion to set aside a conviction on the grounds of unfairness should be exercised with caution and in limited circumstances. Here, the complainants had been able to give specific details of abuse, albeit they were vague on the dates. The trial judge had noted that there were areas in the prosecution case which the accused could challenge relating to inconsistencies in the evidence, possible collusion between complainants, and possible confusion between the accused and his deceased brother who also allegedly perpetrated abuse. It followed that the accused had been able to challenge the prosecution case beyond a simple denial.

The principle to be deduced from the cases is clear: delay alone in such a case as this will not found relief unless it can be shown that the delay, in the circumstances of the case, made it impossible for the accused so to challenge the allegations against him as to have a fair trial.

Bell (Brian Selwyn) [2003] EWCA Crim 319; [2003] 2 Cr App R 13; Smolinski [2004] EWCA Crim 1274, [2004] 2 Cr App R 661 considered.

The Court further held that a sentence of nine years' imprisonment was not excessive.

Author: LL

D2.75 Abuse of Process: Delay

Prosecutions for offences allegedly committed in the distant past raise particular evidential difficulties, and although convictions have been secured in a number of such cases, these sometimes give rise to serious concern. Uncorroborated allegations, particularly those dating from distant childhood, probably create the greatest difficulties (see for example Jenkins [1998] Crim LR 411, Chapman [2001] EWCA Crim 2226, and H, G (deceased) [2005] EWCA Crim 1828) but many 'care home abuse' cases, although often based on multiple accusations, have also given rise to concern. See the 2002 report of the Commons Home Affairs Committee.

The problems were considered once again in Robson and others [2006] EWCA Crim 2754, a case concerning the safety of convictions for physical abuse and child cruelty allegedly committed in a Norfolk care home over 25 years ago. The prosecution case depended upon evidence given by witnesses who were young at the time, and vulnerable. It was submitted that the trial judge ought to have stopped the trial, either at the close of the prosecution case, or at the close of the defence case, on the basis that no jury could safely have convicted on the evidence available, and that the convictions accordingly were unsafe. The court allowed some appeals, and dismissed the rest; but the following preliminary observations by Moses LJ (at [6] and [7]) appear to be of general application:

Cases concerning events so long ago naturally give rise to great concern. They require special consideration, not only as to whether they should be stayed on the grounds that a fair trial would be impossible but also, if they are not stayed, whether any verdicts based upon so distant a recollection are unsafe. As this court has repeatedly emphasised, the dangers inherent in such cases require the judge carefully to scrutinise the evidence himself in order to see whether it is safe to leave the case to the jury. (See in particular Smolinski [2004] EWCA Crim 1270 at paragraphs 9 and 13.) This scrutiny requires the judge to consider not only the nature and quality of the evidence but also inconsistencies, either within the evidence of one witness or between a number of witnesses. It is not sufficient for a judge merely to remark that inconsistencies are a matter for the jury. So they may be in many cases. But in cases where the complaints are of events many years ago, it is the responsibility of the judge to consider whether the inconsistencies are such that no jury, even when properly directed as to the significance of such inconsistencies, could safely convict.

The Lord Chief Justice in Smolinski advised that judges should scrutinise the evidence at the close of the case. But beyond emphasising the need for careful scrutiny, it is not possible to lay down clear principles according to which a judge should decide whether it is safe to leave a case to the jury or whether it is not. Indeed, it would be undesirable for any principle to be established. Any principle would be liable to provide far too rigid a process of determination. The issue must be left to the good judgment of the judge. His judgment will depend upon the type of case and the type of evidence. In some cases the only real issue will be whether any criminal offence took place (sexual offences against a member of the family are an obvious example). In other cases, even greater difficulty will be caused by the passage of time.

Author: MH

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

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

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

Author: MH

D3.6 Case Management

The guidance given by the Court of Appeal in Jisl [2004] EWCA Crim 696 has been reiterated in L [2007] EWCA Crim 764.

Author: MH

D3.8 Case Management

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

July 2007

D5.3 Laying an Information

The Criminal Justice Act 2003 (Commencement No. 16) Order 2007 (SI 2007 No. 1999) brings into force, on 25 July 2007, ss. 29(1) to (3), (5) and (6) and 30, which relate to the new method of instituting proceedings by written charge and requisition. However, the provisions have effect only for the following purposes:

criminal proceedings instituted by a public prosecutor within the meaning of s 29(5)(a) (a police force, or a person authorised by a police force to institute criminal proceedings), in a magistrates' court sitting in one of the following locations:

Barking Magistrates' Court;
Bexley Magistrates' Court;
Brentford Magistrates' Court;
Bromley Magistrates' Court;
Coalville Magistrates' Court;
Croydon Magistrates' Court;
Harrow Magistrates' Court;
Hendon Magistrates' Court;
Knowsley Magistrates' Court;<
Loughborough Magistrates' Court;
Melton Magistrates' Court;
Oakham Magistrates' Court;
Redbridge Magistrates' Court;
Richmond Magistrates' Court;
St Helens Magistrates' Court;
Waltham Forest Magistrates' Court;
City of Westminster Magistrates' Court; and
Wimbledon Magistrates' Court; and

criminal proceedings instituted by a public prosecutor within the meaning of s 29(5)(e) (a person authorised by a Secretary of State to institute criminal proceedings), who is authorised for the purposes of s 49 of the Vehicle Excise and Registration Act 1994 (authorised persons), in a magistrates' court sitting in Portsmouth Magistrates' Court.

Author: MH

21 September 2006

D5.4 The Decision to Issue a Summons - private prosecution

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

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

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

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

Click here for the full text of the judgment.

Author: LL

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

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

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

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

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

Author: LL

July 2007

D5.7 The Decision to Issue a Summons

The Criminal Justice Act 2003 (Commencement No. 16) Order 2007 (SI 2007 No. 1999) brings into force (for limited purposes only) ss. 29(1) to (3), (5) and (6) and 30, which relate to the new method of instituting proceedings by written charge and requisition. See D5.3 for the limited nature of the implementation.

Author: MH

D5.8 Service etc. of the Summons

The Criminal Procedure (Amendment) Rules 2007 (SI 2007 No. 699), which came into force on 2 April 2007, include changes to the Criminal Procedure Rules 2005 which affect service. A new Part 4 (service of documents) is added in substitution for the existing Part 4. This consolidates, revises and simplifies the rules about the service of documents in criminal cases including the service of summonses.

Author: MH

D5.24 Pre-trial Hearings by Television Link

The Police and Justice Act 2006 (Commencement No. 1, Transitional and Saving Provisions) Order 2006 (SI 2006 No. 3364) brings into force s. 45 of the Act on 15 January 2007. Section 45 substitutes a new part 3A (live links for accused's attendance at certain preliminary and sentencing hearings) in the Crime and Disorder Act 1998 for the provisions previously contained in s. 57. However, the new s. 57C (use of live link at preliminary hearings where accused is at police station), which is included in part 3A, is excepted from the implementation.

Author: MH

D6.2 Persons and Courts Having Jurisdiction to Grant Bail

The Police and Justice Act 2006 (Commencement No. 2, Transitional and Saving Provisions) Order 2007 (SI 2007 No. 709) brings into force, on 1 April 2007, s. 10 of and sch. 6 to the Act. These provisions amend the Police and Criminal Evidence Act 1984 in relation to bail granted by a constable elsewhere than at a police station and bail granted at a police station.

Author: MH

D6.24 Risk of Absconding, Further Offences or Interference with Witnesses: Juveniles

The Criminal Justice Act 2003 (Commencement No. 14 and Transitional Provision) Order 2006 (SI 2006 No. 3217) brings into force, to a limited extent, inter alia ss. 14(2) and 15(2) of the Act on 1 January 2007. The provisions are in force for the purposes only of any offence to which para. 2A(2)(b), 6(2)(b), 9AA(1)(b) or 9AB(1)(b) of part 1 of sch. 1 to the Bail Act 1976 applies and in relation to which the defendant is liable on conviction to a sentence of imprisonment for life, detention during Her Majesty's pleasure or custody for life. The previous wording continues to apply in all other cases.

Section 14(2) inserts a new para. 9AA in part 1 of sch. 1 to the 1976 Act. This provides that, if a defendant is aged under 18 and it appears that he committed the offence whilst on bail in criminal proceedings, then in determining whether there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would commit an offence while on bail, the court shall give particular weight to the fact that the defendant was on bail in criminal proceedings when the offence under consideration was committed. The coming into force of s. 14 applies only where the offence for which the bail decision is being made was committed on or after 1 January 2007.

Section 15(2) inserts a new para. 9AB in the same schedule. This provides that if a defendant is under 18 years of age and it appears to the court that, having been released on bail in or in connection with the proceedings for the offence, he failed to surrender to custody, the court shall give particular weight to the fact that the defendant failed to surrender or, where there was a reasonable cause for his failure to attend, the fact that he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time. The coming into force of s. 15(2) applies only where the failure to surrender occurred on or after 1 January 2007.

Author: MH

D6.29 Risk of Absconding, Further Offences or Interference with Witnesses: Absconded in the Present Proceedings

The Criminal Justice Act 2003 (Commencement No. 14 and Transitional Provision) Order 2006 (SI 2006 No. 3217) brings into force, to a limited extent, inter alia s. 15(1) of the Act on 1 January 2007. The subsection is in force for the purposes only of any offence to which para. 2A(2)(b), 6(2)(b), 9AA(1)(b) or 9AB(1)(b) of part 1 of sch. 1 to the Bail Act 1976 applies and in relation to which the defendant is liable on conviction to a sentence of imprisonment for life, detention during Her Majesty's pleasure or custody for life. The previous wording continues to apply in all other cases. Section 15(1) substitutes a new para. 6 of part 1 of sch. 1 to the 1976 Act. This provides that, if a defendant is 18 years or over and it appears to the court that, having been released on bail in or in connection with the proceedings for the offence, he failed to surrender to custody, he may not be granted bail unless the court is satisfied that there is no significant risk that, if released on bail, he would fail to surrender to custody. The coming into force of s. 15(1) applies only where the failure to surrender occurred on or after 1 January 2007.

Author: MH

D6.31 No 'Right to Bail' for Certain Offences Committed on Bail

The Criminal Justice Act 2003 (Commencement No. 14 and Transitional Provision) Order 2006 (SI 2006 No. 3217) brings into force inter alia s. 14(1) of the Act on 1 January 2007. The provisions are in force for the purposes only of any offence to which para. 2A(2)(b), 6(2)(b), 9AA(1)(b) or 9AB(1)(b) of part 1 of sch. 1 to the Bail Act 1976 applies and in relation to which the defendant is liable on conviction to a sentence of imprisonment for life, detention during Her Majesty's pleasure or custody for life. The previous wording continues to apply in all other cases.

Section 14(1) substitutes a new para. 2A of part 1 of sch. 1 to the 1976 Act. This provides that, if a defendant is aged 18 or over and it appears that he committed the offence in question whilst on bail in criminal proceedings, he may not be granted bail unless the Court is satisfied that there is no significant risk of his committing an offence while on bail. The coming into force of s. 14 applies only where the offence for which the bail decision is being made was committed on or after 1 January 2007.

Author: MH

D6.44 General Discretionary Requirements Imposable

Home Office Circular 25/2006 provides detailed advice about the procedures that will be followed when courts decide that an adult defendant should be subject to electronic monitoring, or 'tagging' whilst on bail. Tagging is available as a condition of bail in support of a curfew condition. It states 'The intention of the Home Secretary in making tagging more available is that it should be used as an alternative to remand in custody.' Its implementation date is 1 September 2006.

Author: MH

D6.98 Text of the Bail Act 1976

The Criminal Justice Act 2003 (Commencement No. 14 and Transitional Provision) Order 2006 (SI 2006 No. 3217) brings into force inter alia ss. 14 (offences committed while on bail) and 15(1) and (2) (failure to surrender by persons released on bail) of the Act on 1 January 2007. The provisions are in force for the purposes only of any offence to which para. 2A(2)(b), 6(2)(b), 9AA(1)(b) or 9AB(1)(b) of part 1 of sch. 1 to the Bail Act 1976 applies and in relation to which the defendant is liable on conviction to a sentence of imprisonment for life, detention during Her Majesty's pleasure or custody for life. The previous wording continues to apply in all other cases. Note also the transitional provisions in the Criminal Justice Act 2003 (Commencement No. 3 and Transitional Provisions) Order 2004 (SI 2004 No. 829) which continue to have partial effect on paras. 2 and 9 of sch. 1 to the 1976 Act.

Author: MH

D6.98 Text of the Bail Act 1976

The Police and Justice Act 2006 (Commencement No. 1, Transitional and Saving Provisions) Order 2006 (SI 2006 No. 3364) brings into force s. 42 of the Act and most of the provisions of sch. 13 to the Act on 15 January 2007. The Bail Act 1976, s. 4(2B) is amended by sch. 13, para. 34 of the 2006 Act so as to substitute the words 'to have been convicted' for the words 'to be unlawfully at large after conviction'.

Author: MH

31 October 2006

D8.10; D24.54 Prosecution Disclosure: Retrial

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

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

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

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

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

Click here for the full text of the judgment.

Author: LL

D8.10 Prosecution Disclosure

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

Author: LL

D8.17 Defence Disclosure

Pending the commencement of the Criminal Procedure and Investigations Act 1996, s. 6C (inserted by the Criminal Justice Act 2003, s. 34, but not yet in force) and associated provisions, the duty of disclosure that may lawfully be imposed on the defence by the CrimPR, r. 3.10, was examined by the Divisional Court in R (Kelly) v Warley Magistrates Court [2007] EWHC 1836 (Admin).

Rule 3.10 provides:

In order to manage the trial or (in the Crown Court) appeal, the court may require a party to identify-(a) which witnesses he intends to give oral evidence . . . (f) what written evidence he intends to introduce; (g) what other material, if any, he intends to make available to the court in the presentation of the case; (h) whether he intends to raise any point of law that could affect the conduct of the trial or appeal . . .

At a pre-trial hearing, an order was made in the following terms:

The defence provide details within 14 days to the prosecution of their witnesses to enable the prosecution to consider any issues in relation to making applications to admit bad character information under the provisions of the Criminal Justice Act 2003.

The defence questioned whether such an order could lawfully be imposed under the rules, given that it purported to interfere with matters of litigation privilege and legal professional privilege and that primary legislation providing such a power was not yet in force.

The view of the court (Laws LJ and Mitting J) was that a 'case management' order backed only by moderate or proportionate procedural sanctions might be acceptable in this context, but an unconditional order of the kind imposed in this case was not. Laws LJ ruled (at [33]) that any order which absolutely prohibited a party from calling a witness whose identity he had not disclosed in advance would be unacceptable, because it would in effect purport to change the general law of evidence. Agreeing with Laws LJ, Mitting J added (at [37]):

The imposition on a defendant of a requirement to give advance disclosure of the identity of some witnesses has, hitherto, been thought to require primary legislation: s. 6A(2) Criminal Procedure and Investigations Act 1996 (evidence of alibi) and s. 20 CPIA 1996(3) (expert evidence). I am inclined to think that the imposition of an effective sanction, such as a prohibition on relying on the evidence of a witness not previously identified, would require primary legislation.

Author: MH

D8.19 Defence Disclosure

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

Author: MH

August 2006

D8.43 Third Party Disclosure

In R (B) v Stafford Combined Court [2006] EWHC 1645 (Admin) the Divisional Court found it, "quite unacceptable" that a vulnerable 14-year-old schoolgirl (TB), who was a prosecution witness in the impending trial, was brought to court at short notice, without representation or support, to be faced personally with an apparent choice between agreeing to the disclosure of her psychiatric records or delaying a trial which was bound to cause her concern and stress. She was known to have attempted suicide and was the victim of alleged sexual abuse. Medical records, in particular psychiatric records, are confidential between the medical practitioner and the patient. The patient undoubtedly has a right of privacy within the ECHR, Article 8.

By the Criminal Procedure (Attendance of Witnesses) Act 1965, s. 2(7) (see the main text at D13.29) an application for a witness summons has to be made in accordance with the Criminal Procedure Rules. The CrimPR, r. 28 stipulates the form and content of the application and provides that a copy of it and the supporting affidavit should be served on the person to whom it is directed at the same time as it is served on the court officer. The person to whom it is directed may indicate if he wishes to make representations at a hearing. If he does so, the court has to fix a hearing. The original application in the present case requested a summons directed to the relevant NHS Trust to produce TB's medical records.

The Divisional Court noted that this revealed a defect in the existing rules. May LJ said:

Surprisingly the Rules do not require service of an application such as that in the present case on the very person whose confidence would be broken by their production - not least in the present case their production to a defendant who was alleged to have abused TB sexually.

Nevertheless, CrimPR, r. 1 provides that the overriding objective is that criminal cases are dealt with justly. This includes respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case. By r. 1.3, the court must further the overriding objective when it exercises any power given to it by legislation, including the rules, and when it applies any practice direction or interprets any rule or practice direction.

May LJ concluded (at [25]):

Procedural fairness in the light of Article 8 undoubtedly required in the present case that TB should have been given notice of the application for the witness summons, and given the opportunity to make representations before the order was made. Since the rules did not require this of the person applying for the summons, the requirement was on the court as a public authority, not on W, the defendant. TB was not given due notice or that opportunity, so the interference with her rights was not capable of being necessary within Article 8(2). Her rights were infringed and the court acted unlawfully in a way which was incompatible with her Convention Rights.

The reform of r. 28 is currently under consideration by the Rules Committee. In the court's view, the proposals currently put forward might not be adequate to ensure the future protection of claimants such as TB, and may need reconsideration.

Author: MH

D10.1 General

The Criminal Procedure (Amendment) Rules 2007 (SI 2007 No. 699), which came into force on 2 April 2007, include changes to the Criminal Procedure Rules 2005 which affect indictments. They also revoke the Indictment Rules 1971. A new Part 14 (the indictment) is added in substitution for the existing Part 14. This revises and simplifies the rules about the service, form and content of indictments.

Author: MH

D10.41 Charges Founded on the Same Facts

There is no inconsistency or contradiction in an indictment that charges a defendant (1) with inflicting grievous bodily harm, contrary to the Offences Against the Person Act 1861, s. 20 and (2) possession of a firearm with an intent to endanger life, contrary to the Firearms Act 1968, s. 16. It was argued in J [2007] All ER (D) 70 (Aug) that such counts were inconsistent, on the basis that if D intends to endanger life he must also intend to cause GBH, which is not alleged in a count laid under s. 20. Surprisingly, this argument succeeded at first instance, where the judge ordered withdrawal of the second count; but the Court of Appeal had no difficulty in seeing through it. One can intend to endanger life without intending to kill or cause injury. Recklessness or maliciousness (the mens rea for s. 20) will suffice. The court allowed a prosecution appeal brought under the Criminal Justice Act 2003, s. 58.

Author: MH

July 2007

D11.2 Effect of Lack of Arraignment

Williams [1978] QB 373 was considered (along with Jones [2003] 1 AC 1 and O'Hare [2006] EWCA Crim 471 (as to which see Blackstone's Criminal Practice 2007, D13.35 et seq) in Kepple [2007] EWCA Crim 1339, in which it was held that where D absconds before arraignment it remains possible for the trial to proceed. By absenting himself, D may waive his right to arraignment just as he may waive his right to remain in court during the trial. Giving the judgment of the Court of Appeal, Thomas LJ said (at [17]):

In our view the issue in relation to the arraignment is one of waiver and is to be determined by precisely the same principles of waiver as are applicable in relation to proceedings in the absence of the [defendant]. These principles were discussed by the House of Lords in Jones; there is a helpful analysis of the speeches in [2002] Crim LR 554. In O'Hare, the position was summarised for the purposes of that decision as:
An analysis of the speeches in the House of Lords points to the conclusion that, if waiver is to be established, then knowledge of, or indifference to, the consequences of being tried in his absence and without legal representation would have to be proved.

Author: MH

30 August 2006

D11.5 Custody Time Limits - Criteria for Extension

In R (Hughes) v Woolwich Crown Court and CPS [2006] EWHC 2191 (Admin) the defendant was charged with rape and assault by way of digital penetration. His defence was consent. He alleged that the victim, who lived in the same block of flats, had telephoned him every day. The defendant sought disclosure of the victim's telephone records. These were, as prosecuting counsel recognised as early as 7 April 2006, potentially of importance to the defence because they might tend to support the defence allegation of consent. On 23 June 2006, trial having been fixed for 24 July, the defence requested records of all outgoing telephone calls. The CPS failed to answer this letter. On 11 July a formal defence statement was filed, well out of time, and the request for the records was renewed. The CPS requested the records on 19th July. Trial was twice postponed. The records had still not been obtained by 4 August when the matter came before HH Judge Stone, though they were obtained by the following week.

For the purpose of determining whether there was good and sufficient cause for the delay and whether the prosecution had acted with all due expedition as required by the Prosecution of Offences Act 1985, s. 23(2), HH Judge Stone treated the trigger date as the date upon which the defence filed its defence case statement (i.e. 11 July 2006). In the circumstances this was held to be wrong: the prosecution was informed of the relevance of the telephone records as early as 7 April. The defence had requested the records on 23 June. The judge should have had regard to these matters. It was not necessary for the prosecution to await the formal defence statement in order to take necessary steps to ensure that the trial began on time. The telephone records should have been obtained and disclosed. In determining whether the prosecution has acted with due diligence, the judge should have, but failed to, take account of the chronology and the prosecution's disclosure obligations.

The question of bail and the conditions to be imposed were remitted to the Crown Court as the tribunal best situated to deal with the matter. One would expect this to be the normal procedure in such cases.

It seems clear from this judgment that whether the Crown has acted with due diligence is not a question to be determined mechanically, counting from the formal completion of any particular step in pre-trial preparation, but functionally, having regard inter alia to the nature of the material in question and whether the Crown was aware or made aware of the importance of such matters as disclosure.

Click here for the full judgment

Author: LL

D11.23 The Test of Unfitness to Plead

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

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

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

Author: MH

29 September 2006

D11.59 Double jeopardy-retrial provisions

D [2006] EWCA Crim 1354, sub nom Dunlop (2006) The Times, 14 September 2006 is the first reported case under the retrial provisions of part 10 of the Criminal Justice Act 2003. In brief, Dunlop was tried twice for the murder of Julie Hogg. The jury was unable to agree on both occasions. Subsequently, Dunlop confessed his guilt in a document relating to care proceedings in respect of his daughter, to others including a prison officer, and ultimately pleaded guilty to a charge that he had perjured himself at his trial. Following the enactment of part 10 of the Criminal Justice Act 2003, the Crown applied to charge him with the murder of Julie Hogg.

In allowing the application the Court held as follows, in response to the defendant's arguments:

Using accepted techniques of jury management, it should be possible to select a jury that is not prejudiced by such publicity. In any event, by virtue of the Police and Criminal Evidence Act 1984, s. 74(3), the defendant would, given his conviction of perjury, be taken to have committed that offence unless the contrary be proved. On a retrial the jury would proceed on the premise that he committed perjury when he denied being guilty of the murder of Julie Hogg unless the contrary be proved. Any recollection that any member of the jury had about publicity would pale into insignificance in comparison to the legitimate prejudicial effect of Dunlop's admissions that he had killed Julie Hogg.
Delay here had no special quality so as to make it unfair to try Dunlop for the murder.
The fact that when Dunlop made admissions he could not have been tried for murder does not preclude his now being charged with the offence. Even without the conviction for perjury, a formidable case could have been mounted against him on the basis of statements made to persons other than police officers, for example a nurse who had looked after him in hospital, and the incriminating statement which he made in proceedings under the Children Act relating to his daughter. When he made his statements, Dunlop knew that the double jeopardy rule might be altered because he was aware of the consultation paper on the topic, and he made his statements because he wanted psychiatric help so he was not induced to make his statements by the police because he had been told that he could not be retried for murder: Kirk [2001] 1 Cr App R 400 distinguished. The Court did however approach the case on the footing that, had Dunlop known that he might be retried, he might not have provided the confessions which were the new and compelling evidence justifying his retrial.
Even though Dunlop served a sentence for perjury, the public would be outraged were he not to be retried for the murder. The sentence imposed for the perjury can be taken in to account when assessing the minimum term for the murder. There is therefore no injustice in allowing a retrial in this case.

On 12 September 2006 Dunlop pleaded guilty to the murder of Julie Hogg.

Click here for full text of the judgment

Author: LL

May 2007

D11.64 Meaning of Conviction and Acquittal in Context of Autrefois Pleas

In K [2007] EWCA Crim 971 the defendants were charged with various counts contrary to the Terrorism Act 2000, including conspiracy to provide property for the purposes of terrorism, knowing or intending that it would be used for the purposes of terrorism. An issue arose in this context as to whether a plea of double jeopardy could take account of deportation proceedings before a Special Immigration Appeals Commission (SIAC) and cases decided under the anti-terrorism statutory scheme. The court held that double jeopardy could be invoked only where both the previous and the current proceedings were criminal in nature.

Anything falling outside the limits of the double jeopardy principle, but which involves an alleged abuse of process, or unfairness, or oppression, may however be dealt under well established principles applicable to such matters.

Author: MH

D11.75 Judicial Indications of Sentence

Goodyear [2005] 3 All ER 117 was considered in Kulah [2007] EWCA Crim 1701 in the context of sentencing dangerous offenders. Lloyd Jones J, giving the judgment of the court in Kulah, said:

22. We understand that difficulties are encountered in dealing with Goodyear indications in cases where the defendant is charged with one or more offences which are specified offences within Schedule 15 to the Criminal Justice Act 2003 and we hope it may be helpful if we were to offer some observations.

23. We consider that it is not necessarily inappropriate to seek or to give a Goodyear indication merely because a defendant is charged with a specified offence. However, there may be dangers in undertaking this course and it is necessary to warn of them. If an indication is improperly given, a sentencing judge may find himself bound by the "dangerous offender" provisions to impose a sentence which is qualitatively different from the indication he has given. In the alternative, he may consider himself bound by his prior indication to impose a sentence which does not accord with mandatory statutory provisions.

24. The so-called "dangerous offender" provisions in Part 12, Chapter 5, Criminal Justice Act, 2003 are mandatory (Reynolds [2007] EWCA Crim. 538 at paragraph 5). Thus, if an adult defendant falls to be sentenced for a specified offence committed on or after 4th April, 2005, and he is assessed as presenting a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences, the sentencing judge's discretion is circumscribed. If the offence is "serious" (i.e. carries a maximum penalty of 10 years' imprisonment or more) an indeterminate sentence must be imposed. If it is not "serious" an extended sentence must be imposed.

25. Goodyear was argued before the "dangerous offender" provisions came into effect, although judgment was handed down shortly after they came into effect. The impact of these provisions was not before the Court for consideration. Nevertheless, the guidance set out in Goodyear holds good. Of particular significance in this regard is paragraph 65(d) of the judgment:

"[A]ny indication which may be given relates only to the matters about which an indication is sought. Thus, certain steps, like confiscation proceedings, follow automatically, and the judge cannot dispense with them, nor, by giving an indication of sentence, create an expectation that they will be dispensed with."

26. It is axiomatic that a Goodyear indication will be sought before plea. At that time, it will often be the case that the sentencing judge will not be in possession of the information necessary to enable him or her to make the assessment of risk required by each of subsections 225(1)(b), 226(1)(b), 227(1)(b) and 228(1)(b). In this regard we understand that it is now the usual practice of the Probation Service not to produce a pre-sentence report until after the defendant has pleaded guilty or has been convicted.

27. There will, of course, be very clear cases where the assessment that the offender is dangerous is manifest even at that stage, perhaps based only on the antecedent history and the nature of the offending before the court. It may not be difficult, for example, to categorise as "dangerous" a professional armed robber who has a lifetime of convictions for that offence and who habitually carries loaded firearms in the course of his criminal occupation or a serial rapist with a long history of deviant and dangerous criminal sexual behaviour.

28. However, the great majority of cases will not be clear-cut. Pre-sentence and other appropriate reports will not be available. In such cases, it remains a matter for the judge to decide whether it is appropriate to give an indication. Such a situation was foreseen in Goodyear itself (at paragraph 58).

"There will be occasions when experience will remind him that in some cases the psychiatric or other reports may provide valuable insight into the level of risk posed by the defendant, and if so, he may justifiably feel disinclined to give an indication at the stage when it is sought."

As Goodyear (paragraphs 56-59) makes clear, the judge is under no obligation to give an indication and he has an unfettered discretion in this regard.

29. There are particular difficulties in giving an indication in respect of a young offender (under 18 at the date of his plea of guilty or his conviction) because there is the additional option, which is not available when dealing with an adult, of imposing an extended sentence in respect of a serious specified offence.

30. If the Judge decides to give an indication where an assessment of future risk remains to be made he should make the following matters clear.

The offence (or one or more of them) is a specified offence listed in Schedule 15, Criminal Justice Act, 2003, bringing into operation the "dangerous offender" provisions contained in Part 12, Chapter 5 of that Act.

The information and materials necessary to undertake the assessment of future risk which is required by those provisions are not available and that that assessment remains to be conducted.

If the defendant is later assessed as "dangerous", the sentences mandated by the provisions - an indeterminate or extended sentence - will be imposed.

If the defendant is not later assessed as "dangerous", the indication relates in the ordinary way to the maximum determinate sentence which will be imposed.

If the offender is later assessed as "dangerous", the indication can only relate to the notional determinate term which will be used in the calculation of the minimum specified period the offender would have to serve before he may apply to the Parole Board to direct his release; or, in a case where an extended sentence is the only lawful option, it will relate to the appropriate custodial term within the extended sentence (that is, the indication does not encompass the length of any extension period during which the offender will be on licence following his release). It must be remembered that where an extended sentence is imposed on any offender, the appropriate custodial term cannot be less than 12 months (subsections 227(3)(b); 228(3)(b)).

If an indeterminate sentence is mandated by the provisions, the actual amount of time the offender will spend in custody is not within the control of the sentencing judge, only its minimum.

Nevertheless, it seems to us that judges may, understandably, feel a reluctance to give a Goodyear indication in circumstances where they do not yet know how dangerous the defendant really is.

31. Finally in this regard, we would point out that Goodyear (paragraph 70) already imposes an obligation on the prosecution to draw the attention of the judge to any minimum or mandatory sentencing requirements. That obligation includes a duty to inform the judge that the offence charged is a specified offence and of the requirement to undertake the risk assessment required by each of the relevant subsections.

Author: MH

11 September 2006

D11.86 Change of plea-guilty to not guilty

Revitt and Others v DPP [2006] EWHC 2266 (Admin) restates familiar propositions relating to the court's discretion to allow an accused person to change his guilty plea. The defendants, who were seen to have driven their motorcycles at undue speed, pleaded guilty to dangerous driving and to other motoring offences, namely driving without a valid licence, driving without insurance, and driving a vehicle without a valid test certificate. The defendants were unrepresented when they entered their guilty pleas. They were informed by the court of the nature of the charge (which they agreed that they understood), declined an offer of advance disclosure, were informed that the charges were serious and that for them to be legally advised was desirable, and finally that the charges were serious and could merit a custodial sentence. The magistrates retired to consider sentence. Solicitors by now acting for the defendants then sought unsuccessfully to withdraw their guilty pleas and again unsuccessfully renewed their application when the defendants came up for sentence some days later, contending that the defendants thought that they were pleading guilty to public nuisance.

On appeal, the defendants contended that the practice followed in relation to guilty pleas is incompatible with the ECHR, Article 6 and, further, that they did not receive a fair trial.

The Court held that the guilty plea procedure, given the safeguards which surround it (including the court's discretion to allow a change of plea), is consistent with Article 6. The discretion to withdraw an informed and unequivocal plea of guilty should be exercised having regard to whether there is concern whether a guilty plea was intended or really ought to have been made. Here, the defendants fully appreciated the nature of the charge. Their pleas of guilty to other motoring offences rendered incredible the assertion that they intended to plead guilty to nuisance. This was not a case in which the material facts did not amount to the offence charged. Accordingly, the magistrates acted within their discretion in refusing to allow a change of plea. S v Recorder of Manchester [1971] AC 481; South Tameside Magistrates' Court, ex parte Rowland [1983] 3 All ER 689 (per Glidewell J at p 692) and Bournemouth JJ, ex parte Maguire [1997] COD 21 applied.

Click here for the full text of the judgment.

Author: LL

D11.86 Change of Plea: From Guilty to Not Guilty

The Criminal Procedure (Amendment No. 2) Rules 2007 (SI 2007 No. 2317) amend the principal Rules of 2005 (SI 2005 No. 384). Inter alia they add a new r. 39.3 which specifies the procedure to be adopted on an application to change a plea of guilty on a trial on indictment.

Author: MH

D12.51 Judge-only Trials on Indictment

The Domestic Violence and Victims Act 2004 (Commencement No. 7 and Transitional Provision) Order 2006 (SI 2006 No. 3423) brings into force, on 8 January 2007, ss. 17 to 20 of the Act (trial by jury of sample counts only). The coming into force of ss. 17 to 20 of the 2004 Act has no effect in relation to cases where one of the following events has occurred before 8 January 2007 -

the defendant has been committed for trial;

a notice of transfer has been given under the Criminal Justice Act 1987, s. 4 (serious or complex fraud) or the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988, art. 3;

a notice of transfer has been given under the Criminal Justice Act 1991, s. 53 (cases involving children) or the Children's Evidence (Northern Ireland) Order 1995, art. 4; or

the prosecution evidence has been served on the defendant in a case sent for trial under of the Crime and Disorder Act 1998, s. 51.

Author: MH

May 2007

D13.20 Preparatory Hearings under the Criminal Procedure and Investigations Act 1996

In M (No. 2) [2007] EWCA Crim 970 a Crown Court judge was faced with a dilemma caused by conflicting rulings from the Court of Appeal. The first ruling was made on an appeal in the case before him and replaced rulings he himself had made in that case. The second (Rowe [2007] EWCA Crim 635) was a ruling made by a five-judge court in a different case, in which the court's earlier ruling was declared to have been made per incuriam.

It was argued that the Court of Appeal's original ruling in M remained binding in that particular case (if nowhere else) until and unless reversed by the House of Lords. The Court of Appeal disagreed. Notwithstanding that it resulted from a decision of that same Court, the ruling remained capable of variation or modification if the interests of justice so required (Criminal Procedure and Investigations Act 1996, s. 31(11)). Rowe concluded that the decision in the first appeal, and therefore the basis on which this complex trial was otherwise to proceed, was based on an incorrect legal analysis of vital statutory provisions. The judge had to face legal realities and could not ignore the new ruling or brush it aside.

Author: MH

D13.20 Preparatory Hearings under the Criminal Procedure and Investigations Act 1996, ss. 28 to 38

The Criminal Procedure (Amendment No. 2) Rules 2007 (SI 2007 No. 2317) amend the principal Rules of 2005 (SI 2005 No. 384). Inter alia they replace the rules in the former part 65 with new rules set out in part 66 (appeal to the Court of Appeal against ruling in preparatory hearing).

Author: MH

August 2006

D13.22 Preparatory Hearings under the CJA 1987

Gunawardena [1990] 2 All ER 477 was considered in H [2006] All ER (D) 92 (July). In which it was held that an application concerning disclosure was not one of the purposes of a preparatory hearing within the meaning of the Criminal Justice Act 1987, s. 7(1) and that the Court of Appeal accordingly had no jurisdiction to hear an appeal against a ruling on such an application by virtue of s. 9(11).

The court subsequently ([2006] All ER (D) 319 (Jul)) refused leave to appeal to the House of Lords, but certified that three questions of law of general public importance were involved in the decision, namely: (i) whether, for an appeal to lie to the Court of Appeal under the Criminal Justice Act 1987, s. 9(11) from an order or ruling in the course of a preparatory hearing held under s. 7 of the Act, the order or ruling itself had to be for one of the purposes set out in s. 7 of the Act; (ii) if so, whether an order or ruling in determination of an application for disclosure under the Criminal Procedure and Investigations Act 1996, s. 8, fell within one of those purposes; and (iii) in any event, whether an order or ruling in determination of an application for disclosure under s. 8 of the 1996 Act could be the subject of an application under the provisions of s. 9(11) of the 1987 Act.

Author: MH

D13.24 Preparatory Hearings under the CJA 1987

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

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

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

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

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

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

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

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

Given the view I take of the breadth of the section 7(1) purposes for which an order for a preparatory hearing to be held can be made, I cannot conceive of an order or ruling under section 9(3) (b), (c) or, now, (d), thus qualifying for an appeal under section 9(11), that would not be for one of the purposes set out in section 7(1). My answer to the question is that nothing more need be shown than that the appeal can be brought within section 9(11).

I cannot conceive of an application for disclosure under section 8 of the 1996 Act that would not fall within one or other of the section 7(1) purposes.

An order or ruling in determination of an application for disclosure under section 8 of the 1996 Act would qualify for an appeal under section 9(11) if, but not unless, it involved the determination of a 'question of law relating to the case'. It would not necessarily, or, in my opinion, usually, do so, and if it did not do so the order or ruling could not be the subject of an appeal under section 9(11).'

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

Author: MH

D13.31 Expert Evidence

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

Author: MH

D13.42 Attendance of Witnesses

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

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

Author: MH

D13.46 Special Measures: Position of Defendant

Even though the Youth Justice and Criminal Evidence Act 1999 (prior to amendments inserted by the Police and Justice Act 2006) made no provision for vulnerable defendant to give evidence via video link, it was wrong for a judge to conclude that he had no jurisdiction or power to order that a defendant could avail himself of video link facilities. There might be exceptional circumstances in which that was a sensible method for ensuring the participation of a defendant who was otherwise unable to participate in all or some of the trial process: Ukpabio [2007] EWCA Crim 2108.

Author: MH

D14.40 Procedure on Submission of no Case

There may be circumstances in which the judge ought not to direct a verdict of acquittal immediately upon ruling that there is no case to answer on the sole count of the indictment, but instead allow the case to continue so that a verdict may be taken in respect of an alternative summary offence of which the jury might lawfully convict the accused. See Livesey [2006] EWCA Crim 3344 (noted above at B11.79).

Author: MH

May 2007

D14.41 Stopping the Case before the End of the Trial

In Collins [2007] EWCA Crim 854, the Court of Appeal emphasised once again that the practice of inviting a jury to acquit before the end of the trial has now been 'comprehensively disapproved'. It may be exercised (if at all) only in the most exceptional circumstances. If a trial judge considers that the credibility of key prosecution witnesses has been so completely undermined by cross-examination as to render any reliance on that evidence unsafe, he must himself assume responsibility and stop the case.

Author: MH

D15.3 The Accused as a Witness

The Police and Justice Act 2006 (Commencement No. 1, Transitional and Saving Provisions) Order 2006 (SI 2006 No. 3364) brings into force s. 47 of the Act on 15 January 2007. Section 47 provides that the court may give a direction to the effect that the accused may give evidence by live link.

Author: MH

D15.10 Expert Evidence

Author: MH

June 2007

D16.22 Unanimity as to the Basis of a Guilty Verdict

Brown (Kevin) (1983) 79 Cr App R 115, Carr [2000] Cr App R 149, Giannetto [1997] 1 Cr App R 1, and other authorities on jury unanimity were considered (along with Sir John Smith's seminal article on 'Satisfying the Jury' [1988] Crim LR 335) in Tirnaveanu [2007] EWCA Crim 1239.

Author: MH

9 October 2006

D16.24 Summing Up Amounting to Direction

In Caley-Knowles and Jones [2006] EWCA Crim 1611, (2006) The Times, 4 October 2006, the Court of Appeal dictum suggests that there may be a qualified exception to the rule laid down in Wang [2005] EWCA Crim 476, [2005] 1 WLR 661 that there are no circumstances in which a judge is entitled to direct a jury to return a verdict of guilty.

Caley-Knowles, a CCRC reference, concerned a conviction for assault causing actual bodily harm in 1972. The defendant, who admitted striking the victim because of an old grievance, had no defence. The trial judge reminded the jury of the ingredients of the offence. He directed the jury that they had to return a verdict of guilty, remarking that he was taking the matter out of the jury's hands and accepting full responsibility for the verdict. The jury then returned a verdict of guilty without retiring. The facts in Jones, a reference by the CCRC of a conviction for criminal damage dating from 1994, are similar insofar as the judge's conduct was concerned. The judge intimated that he would direct the jury to convict and that there was no point in the defence addressing the jury. Again, the jury returned a verdict of guilty without retiring.

In holding that the appeals in the instant cases had to be allowed, the Court drew a distinction between a case in which the jury, albeit strongly directed, were left to retire and make their own decision, and a case such as those under consideration where the judge stated in terms that he was withdrawing the case from the jury so that the verdict was not in truth that of the jury at all (at [26]). The decision to quash these two convictions arose because the matter was effectively removed from the jury. The Court states (at [28]) 'We are only deciding that a conviction will be unsafe where, as here, the issue as to the defendant's guilt has been completely taken away from the jury'. The Court further remarks that the CrimPR, r 3.2.1 places a burden on a trial court to manage cases actively and that includes the undoubted power of the court to exclude irrelevant evidence and argument. Wang was distinguished and Kelleher [2003] EWCA Crim 3525 was followed.

It is, with respect, by no means clear that the Court's dictum is well-founded. Wang held that the issues in the case must be left to the jury. The judge may express strong views on the evidence provided that he leaves the ultimate assessment to the jury, and makes plain that whatever views he may express the ultimate question is for the jury alone. Nothing in the speech of Lord Bingham of Cornhill in Wang lends credence to the view that a verdict may be regarded as safe where the judge, although allowing the jury to retire, states, categorically, that on the evidence the defendant has no defence and the jury must convict. The Court relies on Kelleher which was not cited to the House of Lords in Wang but it is difficult to see why a verdict following a categorical direction that the jury must convict should be safe where the jury in fact retires and unsafe where it gives its verdict without retiring. In neither case, surely, can the verdict be said to have been left to the jury in any meaningful sense.

Author: LL

D18.3 Ascertaining the Facts of the Offence

The Court of Appeal has emphasised in Cain and other appeals [2006] EWCA Crim 3233 the duty of prosecution and defence advocates to assist the court or judge in ascertaining what sentences may lawfully be imposed in the case in which they are involved. A judge will very often not see the papers very long before the hearing and will not have the time for preparation that the advocates should enjoy. It is unacceptable for advocates not to ascertain and be prepared to assist the judge with the legal restrictions on the sentence that he can impose on the defendant. It is the duty of prosecuting counsel to ensure that the judge does not, though inadvertence, impose a sentence which is outside his powers. The court also emphasised the duty of a prosecution advocate to draw the court's attention to any relevant sentencing guidelines or guideline decisions of the Court of Appeal. The court concluded by warning that the only way of achieving an acceptable standard of practice may be to require prosecuting advocates to prepare a schedule or memorandum that identifies the matters relevant to sentence.

Author: MH

D18.9 Newton Hearings

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

Author: MH

July 2007

D19.2 Informations Generally

Author: MH

D19.18 Failure of Defendant to Appear

Author: MH

May 2007

D19.39 Unfitness to Plead in the Context of Summary Proceedings

In CPS v P [2007] EWHC 946 (Admin) the Divisional Court considered some problems that may arise where it is submitted that a defendant lacks a sufficient level of maturity or intellectual capacity to understand and participate effectively in the proceedings. The case in question involved a child defendant, and it is clear that issues of this kind arise most frequently in the youth courts, but many of the same principles will clearly apply mutatis mutandis to summary trials in which an adult defendant's intellectual capacity is in doubt.

Having considered R (P) v Barking Magistrates Court [2002] EWHC 734 (Admin), R (TP) v West London Youth Court [2005] EWHC 2583 and SC v UK [2004] 40 EHRR 10, Smith LJ offered the following general guidance:

51. . . . There can be no doubt that, notwithstanding the fact that the youth court is a creature of statute (like any other magistrates' court) it has an inherent jurisdiction to stay proceedings as an abuse of process at any stage. The jurisdiction is limited to matters directly affecting the fairness of the trial of the particular defendant concerned and does not extend to the wider supervisory jurisdiction for upholding the rule of law, which is vested in the High Court: see R v Horseferry Road Magistrates Court ex parte Bennett [1994] 1 AC 42. However, although the jurisdiction exists, I think that it will be in only exceptional cases that it should be exercised, on the ground of one or more of the capacity issues, before any evidence is heard.

52. Medical evidence such as was put before [the district judge in this case] will rarely provide the whole answer to the question of whether the child ought to be tried for a criminal offence. This is an issue which the court has to decide, not the doctors, although of course the medical evidence may be of great importance. But, the medical evidence must almost always be set in the context of other evidence relating to the child, which may well bear upon the issues of his understanding, mental capacity and ability to participate effectively in a trial . . .

53. Accordingly, it is my view that, in most cases, the medical evidence should be considered as part of the evidence in the case and not as the sole evidence on a freestanding application . . .

54. As was pointed out in the West London case, the court has a duty to keep under continuing review the question of whether the criminal trial ought to continue. If at any stage the court concludes that the child is unable to participate effectively in the trial, it may decide to call a halt. However, the court may consider that it is in the interests of the child that the trial should continue. If the prosecution evidence is weak, there may be no case to answer . . .

55. If the court decides that it should call a halt to the criminal trial on the ground that the child cannot take an effective part in the proceedings, it should then consider whether to switch to a consideration of whether the child has done the acts alleged (the fact-finding process), under the procedure referred to in the Barking case. It is clear since Re H (see above) that the fact that a child cannot take an effective part in the fact-finding process does not infringe his Article 6 rights. That process is part of the protective jurisdiction contemplated by the [Mental Health Act] 1983 and the child's Article 6 rights are not even engaged.

56. The decision as to whether or not to switch to fact-finding is one for the discretion of the court. The court will wish to consider the possibility that (either on the basis of existing medical evidence or further medical evidence) it might be appropriate to make a hospital order. If that possibility exists, the court should usually find the facts. But even if a hospital order seems unlikely, there may be other advantages in continuing to complete the fact- finding process. If the court finds that the child did do the acts alleged, it may be appropriate to alert the local authority to the position with a view to consideration of care proceedings. Although the youth court's findings may not be binding in the context of care proceedings, the fact that those findings have been made might result in the simplification of care proceedings. I consider that proceedings should be stayed as an abuse of process before fact- finding only if no useful purpose at all could be served by finding the facts.

57. If the court decides to find the facts and finds that the defendant did the acts alleged, it would then consider whether to seek further medical evidence with a view to making an order under the MHA 1983. If the court finds that the defendant did not do the acts alleged, the proceedings would be brought to an end by a finding of not guilty.

58. [It was] submitted that there will be a small residuum of cases in which it is clear, before any evidence is called, that the defendant will not be able to participate effectively in a trial. In those circumstances it would be right to stay the proceedings at the outset. I would accept that if the child is so severely impaired that he clearly cannot participate in the trial and if it is clear that there would be no point in finding the facts with a view to making an order under the MHA 1983, there would seem to be little purpose in proceeding. But if there does remain a defence of doli incapax the selfsame reports which reveal incapacity to take part in the trial might well also contain evidence on which to base that defence. Ought not the defendant to have the chance of an acquittal rather than a stay? If I am wrong about the availability of that defence, it would in my view be right to stay proceedings at the outset if the child was clearly so severely impaired as to be unable to participate in the trial and where there is no useful purpose in finding the facts. Thus the residuum of cases which should be stayed at the outset will in any event be very small. I would add that, if proper consultation has taken place before the prosecution is instituted, very few such cases should ever reach the youth court.

Author: MH

D19.39 Unfitness to Plead in the Context of Summary Proceedings

The power of a magistrates' court to proceed under the Mental Health Act 1983, s. 37(3) without a trial (even where D's representatives demand one, and seek to run a defence of insanity) was examined in R (Singh) v Stratford Magistrates' Court [2007] EWHC 1582 (Admin). Having considered Lincolnshire (Kesteven) Justices, ex parte O'Connor [1983] 1 WLR 335, Hughes J said:

32. Plainly, since in that case everyone wanted a hospital order made, the court did not have to apply itself to what should happen if they did not. The consent of representatives is in any event of necessarily limited significance if the accused is unfit to give instructions or receive advice. I agree that the submission of such representatives, or of the accused if he is in a state to make decisions, is a factor of considerable importance. I am however unable to accept that either the accused or his representatives should be invested with what is in effect a veto upon the exercise of the power.

33. The flexibility of the section 37(3) procedure was emphasised by this court in R(P) v Barking Youth Court [2002] 2 Cr App Rep 294. That was a case of apparent unfitness to stand trial rather than of alleged insanity at the time of the offence, but the same principles seem to me to apply. This court held that the magistrates ought not to have embarked upon a trial of the issue of fitness to plead, as would be done in the Crown Court. There was no necessity for the determination of that issue. Instead they should first have determined the factual question whether the accused had done the act or made the omission charged, and then have considered whether a section 37(3) order might be appropriate, and obtained reports for the purpose. That demonstrates that the making of a section 37(3) order need not be predicated on the determination of the issue of fitness to plead but may be based more broadly upon the mental state of the accused, providing that the acts/omissions are proved. Similarly, in CPS v P [2002] EWHC 946 (Admin), which was another case of alleged unfitness to stand trial, this court held that such an issue ought not to be tried as a freestanding issue on an application to stay for abuse of process. I do not say that it will never be right to decide that the issue of insanity ought to be determined as a freestanding issue, and I can envisage situations in which it should be. But what these cases show is that there is no entitlement to such trial of an issue; rather the interests of justice and of the accused must be considered individually in each case.

34. An accused or his representatives must, in my view, to be entitled to have fully considered the submission that there should be a trial of the issue of insanity even if an order under s 37(3) is likely. It might be very important to the accused that it be established that he was insane, rather than malicious, particularly if he is now significantly better. It might also be of real concern to others involved, or to the public, that it be known, if it be the fact, that he was legally insane at the time of the acts charged. If there is such good reason, it is open to the magistrate, I am satisfied, to determine the issue of insanity without returning a verdict. He can then, in a suitable case, go on to consider section 37(3). If he contemplates taking such a course, he must make clear that the option of section 37(3) will remain for consideration afterwards. Magistrates do sometimes proceed to trial of an issue. It may happen if the basis for sentencing is disputed (a Newton hearing) or occasionally upon a voire dire. Further, section 37(3) itself provides an example in the fact-finding exercise required before it can be applied. The magistrate has a discretion, which must be exercised judicially, whether to adopt that course or not. And he has a discretion, which must be similarly exercised, whether to invoke section 37(3) and if so, at what stage.

35. I agree with Mr Murphy that in all cases where an order under section 37(3) is a possibility, the court should first determine the fact-finding exercise. That may be concluded, as here, on admissions, or it may involve hearing evidence. If the court is not satisfied that the act/omission was done/made, an unqualified acquittal must follow, whatever the anxieties may be about the accused's state of health.

. . .

38. I am satisfied that both in cases of alleged insanity at the time of the offence and of apparent unfitness to stand trial, the magistrates have the power to abstain from either conviction or acquittal but rather to make a hospital or guardianship order, if such be justified medically, and provided only that it is shown that the accused did the act or made the omission charged. That is a medical rather than a penal disposal. It is consistent with the provisions which two centuries of statutes since the Criminal Lunatics Act 1800 have made for medical disposal in such cases when the accused is charged on indictment. It is in the public interest that if a man suffering from sufficient mental illness to warrant detention in hospital or reception into guardianship has committed an act or omission which would, but for his condition, be an imprisonable criminal offence, the court should have power to make a protective order of one or other kind.

39. I am also satisfied that the magistrates' court has the power, in an appropriate case, to try the issue of insanity and pronounce its conclusion upon it, without convicting or acquitting the accused, provided that the conditions for making a hospital or guardianship order under section 37(3) are met. Equally, however, if satisfied that there is no purpose in resolving the issue of insanity, and if a section 37(3) order is going to be made, the court can deal with the case without trying that issue.

40. If it is clear that no section 37(3) order is going to be possible on the medical evidence whatever happens, then in the absence of some other compelling factor the case must proceed to trial, so that if the accused was insane, he is acquitted, and if he was not, he is convicted.

41. Before embarking on a case in which section 37(3) may be applied, magistrates should make it clear that it is a possibility and should invite submissions upon the course to be adopted. In particular, careful consideration must be given to any reason advanced why the issue of insanity should be tried. Such an application should be resolved having regard to the interests of justice, which include, but are not limited to, justice to the accused.

42. The likely occasion for successive hearings in a potential section 37(3) case, or any case in which insanity is alleged, are such as to make it suitable for allocation to a District Judge where such can conveniently be achieved.

Author: MH

D19.42 Change of Plea

The Criminal Procedure (Amendment No. 2) Rules 2007 (SI 2007 No. 2317) amend the principal Rules of 2005 (SI 2005 No. 384). Inter alia they add a new r. 37.6 which specifies the procedure to be adopted on an application to change a plea of guilty on summary trial.

Author: MH

D20.4 Securing the Attendance of Witnesses

Author: MH

D20.24 Submission of No Case to Answer

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

Author: MH

May 2007

D22.1 Introduction

In CPS v P [2007] EWHC 946 (Admin) (also considered at D19.39) the court referred to the principles laid down in the CDA 1998, s. 37(1) and related provisions, but added:

33. . . . this statutory framework, based as it is on the aim of preventing crime by children and young persons, ought to provide a means by which the relevant agencies can consult and cooperate over the handling of a child who, whether as the result of intellectual disabilities or misconduct or both is getting into trouble, so as to tackle those problems, if possible, without resorting to criminal proceedings.

34. Section 5 of the Children and Young Persons Act 1969 as amended imposes a duty on any person who decides to lay an information in respect of an offence in a case where he has reason to believe that the alleged offender is a young person (including a child) to give notice to the appropriate local authority. Section 9 of that Act requires a local authority who receives notice that such proceedings are being brought to investigate and to make available to the court such information about the home surroundings, school record, health and character of the young person as appears to the authority likely to assist the court.

35. . . . it seems . . . that these provisions, read together with the provisions I have previously cited, offer an opportunity for the relevant authorities to consult about the best way forward in respect of a child who is about to be prosecuted for an offence. It may, particularly in the case of a young child with mental health or disability problems, be thought preferable to proceed by way of civil proceedings seeking a care or supervision order under the Children Act 1989, rather than to embark on a prosecution.

36. If a decision is made to prosecute a child for a criminal offence, the prosecutor and the court ought, I think, to be alive to the possibility that the child might not, for one reason or another be fit to face a criminal trial. . . The prosecutor and court ought also to be alive to the possibility that the child might be doli incapax.

As to the doli incapax point (on which the court was not wholly in agreement), see A3.38.

Author: MH

July 2007

D22.41 Constitution and Operation of the Youth Court

The Youth Courts (Constitution of Committees and Right to Preside) Rules 2007 (S.I. 2007 No. 1611), which came into force on 13 July 2007, replace the Youth Courts (Constitution) Rules 1954. Under r. 3 of the 2007 Rules, there has to be a committee, known as a 'youth panel', for each local justice area. The panel consists of the youth justices (i.e. the justices authorised to sit as members of a youth court) for the local justice area to which the youth panel relates. The function of the youth panel is to advise the Bench Training and Development Committee (or, for Inner London, the Inner London Youth Training and Development Committee) in relation to the number of justices required to sit and preside in youth courts in its local justice area and to liaise with other bodies to share information and represent the views of youth justices.

Rule 10(1) requires a youth court to consist of either (a) a District Judge (Magistrates' Courts) sitting alone, or (b) not more than three justices, including a man and a woman. Under r. 10(2) and (3), if no male justice or (as the case may be) no female justice is available due to circumstances that were unforeseen when the justices to sit were chosen, or if the only male (or female) justice present cannot properly sit as a member of the court, then the court may be constituted without a male (or female) justice if the other members of the youth court think it inexpedient in the interests of justice for there to be an adjournment. Under r. 11(1), a youth court (unless it consists of a District Judge sitting alone) must be chaired by a District Judge (if he is sitting as a member of the court) or by a youth justice who is on the list of approved youth court chairmen. Rule 11(2) provides that a youth justice may preside before he has been included on a list of approved youth court chairmen only if he is under the supervision of a youth justice who is on a list of approved chairmen and has completed the necessary training course. Rule 12 deals with the exceptional situation where no youth justice entitled to preside at the hearing is present. Rule 12(1) states that that the youth justices present may appoint one of their number to preside provided that they are satisfied as to the suitability of the justice they propose as chair and (unless the absence of a qualified chairman arises because of illness, circumstances unforeseen when the youth justices to sit were chosen or some other emergency) the justice in question has completed, or is undergoing, a chairman training course.

Author: MH

D23.1 Intervention Orders

The Drugs Act 2005 (Commencement No. 4) Order 2006 (SI 2006 No. 2136) brings s. 20 of the Act into force on 1 October 2006. Section 20 inserts new sections into the Crime and Disorder Act 1998. Section 1G of the 1998 creates the power to make intervention orders and s. 1H supplements that power. Intervention orders are orders which may be made at the same time as a court makes an ASBO in respect of a person aged over 18, following a report and consultation with prescribed persons. An intervention order requires the defendant to comply with requirements and directions. Intervention orders are declared to be designed to address anti-social behaviour stemming from drug use by providing forms of activities and treatment to ease the defendant's drug dependency.

The Crime and Disorder Act 1998 (Intervention Orders) Order 2006 (SI 2006 No. 2138) prescribes the persons to be consulted before applying for an intervention order, namely the National Health Service Trust, Primary Care Trust, National Health Service Foundation Trust or, where it is not itself the applicant for the associated ASBO, the local authority concerned with the provision of appropriate activities within the area in which it appears that the defendant resides or will reside (art. 2). Article 3 prescribes the person responsible for the provision or supervision of 'appropriate activities' (namely a trust or authority referred to in art. 2 which provides or supervises, or arranges for the provision or supervision of, such activities). Article 4 prescribes those activities and who constitutes an 'appropriately qualified person' to compile a report for the purposes of such an application.

Author: MH

D23.4 Relevant Authority

The Crime and Disorder Act 1998 (Relevant Authorities and Relevant Persons) Order 2006 (SI 2006 No. 2137) specifies the Environment Agency and Transport for London as 'relevant authorities' for the purposes of the Crime and Disorder Act 1998, ss. 1, 1B, 1CA and 1E. Where a person has acted in an anti-social manner on or in relation to land in respect of which the Environment Agency has a statutory function, it may apply for the purpose of protecting persons who are (or are likely to be) on or in the vicinity of such land. Transport for London's powers are limited to action relating to its land or vehicles or those of a subsidiary operator.

Author: MH

6 September 2006

D24.7 Deciding Outcome of Appeal and Giving Judgment

In Coates [2004] 1 WLR 3043, [2004] EWCA Crim 2253, the Court of Appeal held that, notwithstanding that a decision on an appeal had been reached by all three judges, the appeal could not be said to be determined if the decision was not binding on the judges themselves. This was in the context of a reserved judgment, the result of which had been agreed by all the judges but not embodied in a written judgment to which all members of the court had agreed. The same case deals with the situation where the court gave its decision in open court but announced that reasons would be given later. Here, the court was bound and reasons might be produced by two members. In Steele [2006] EWCA Crim 2000, (2006) The Times, 5 September 2006, the Court holds that a decision is final, within the meaning of the Supreme Court Act 1981, s. 55, when the draft judgment is released to counsel, notwithstanding that one member of the court was not present on that occasion. A decision is properly to be regarded as binding on the judges themselves when all three judges indicated their approval of the draft and authorised its release to counsel. Accordingly, the Court lacked jurisdiction to receive further submissions on the merits of the case.

Click here for the full text of the judgment.

Author: LL

D24.17 Compromising Appeals

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

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

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

Author: MH

December 2006

D24.22 Prosecution Appeals: the Criminal Justice Act 2003

The scope of the Criminal Justice Act 2003, s. 58, was examined by the Court of Appeal in Thompson and another (application under s. 58 of the Criminal Justice Act 2003) [2006] EWCA Crim 2849. The court held that s. 58 could not be used by the prosecution in order to challenge a ruling by the judge dismissing a charge and quashing an indictment (or a relevant count in an indictment) pursuant to the Criminal Justice Act 1998, sch. 3, para. 2, on the basis that the evidence would not be sufficient for a jury properly to convict.

As the Court pointed out, s. 58 and its ancillary provisions appear to assume that an acquittal is the necessary result of either the ruling itself or the Crown's attempt, if unsuccessful, to appeal it: see s. 58(8), s. 58(12) and s. 61(3). A successful sch. 3 dismissal application does not, however, lead to acquittal. Nor did a study of Hansard suggest that s. 58 was intended to have any application in such cases.

It remains open to the prosecution to seek a voluntary bill of indictment in such cases: see sch. 3, para. 2(6)(a), which has not been repealed by the 2003 Act.

Author: MH

D24.22 Prosecution Appeals: the Criminal Justice Act 2003

The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 7 and Transitional Provision) Order 2006 (SI 2006 No. 3423) brings into force, on 8 January 2007, s. 30 of the Act which amends the Criminal Justice Act 2003, s. 58 in relation to the applicable time for appeals to be made as a consequence of the implementation of the provisions of ss. 17 to 20 of the 2004 Act (trial by jury of sample counts only).

Author: MH

12 September 2006

D24.25 Compromising appeal

In Owens [2006] EWCA Crim 2206 the Court of Appeal disapproved a deal the effect of which would have been to compromise an appeal by two brothers charged with two counts of conspiracy, the first of fraudulent evasion of excise duty which involved laundering red diesel and the second of money laundering. Prosecution counsel agreed not to oppose an appeal on the second charge provided that the first charge and the sentences imposed in respect of it were not challenged. In a stinging rebuke, the Court states that an agreement by counsel not to oppose an appeal must have a logical or intellectual basis. The matter must be fully opened to the Court. A compromise which amounts to no more than a deal is unacceptable: it shows a fundamental misunderstanding of the function of the Court in determining appeals within the Criminal Appeal Act 1968, s. 2, namely, to allow an appeal against conviction if it considers the conviction to be unsafe and otherwise to dismiss the appeal.

Click here for the full text of the judgment.

Author: LL

December 2006

D24.25 Appeals against Conviction: Statutory Basis of Determination of Appeal

When the Court of Appeal is invited to consider whether there is a 'lurking doubt' as to the safety of a conviction, the views of the trial judge are irrelevant to the task of the Court of Appeal, even if it appears that he believes the conviction may be unsafe: Webster [2006] All ER (D) 219 (Nov).

Author: MH

D24.43 Inconsistent Verdicts

Where a court or jury delivers two or more inconsistent verdicts in respect of the case before them, this may suggest that the decision-making process was in some way flawed and, although the Court of Appeal is notoriously slow to recognise contrasting verdicts as being logically inconsistent, a truly inconsistent set of verdicts (inexplicable on the evidence before the court) may require any relevant convictions to be quashed.

Different considerations apply to cases in which the verdict of one court or jury is inconsistent with that of another in a related case. As the Court of Appeal noted in Burke [2006] EWCA Crim 3122, inconsistency between verdicts at two different trials is not in itself any reason to hold a conviction unsafe (Andrews Weatherfoil Ltd (1972) 56 Cr App R 31). In Burke, therefore, B's conviction for laundering the proceeds of C's alleged tobacco smuggling was not rendered unsafe merely because C was later extradited from Spain and tried for, but acquitted of, that offence.

Whether B's conviction was now to be considered unsafe depended on whether evidence demonstrating this had emerged at C's trial. If so, it was necessary for B to place such evidence before the Court of Appeal. The court could not otherwise assume it would find such evidence credible. Jack LJ said:

The court is . . . being asked to allow the appeal on the ground of fresh evidence where there is no application before the court to receive the evidence, where the evidence in question . . . is not placed before the court, and where the witness is not available to give evidence to the court. The effect is that the court is asked to assume that the court would find the evidence . . . credible and that it would exculpate the appellant . . . We are being asked to allow the appeal without an opportunity to give proper consideration to the proposed new evidence. That is not a course which we should adopt.

Author: MH

D24.54 Power to Order Retrial

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

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

Author: LL

D24.67 Powers of the Court of Appeal when Determining an Appeal against Sentence

In Reynolds [2007] EWCA Crim 538, it was held that by virtue of the Criminal Appeal Act 1968, s. 11(3), the Court of Appeal cannot, when determining an appeal against sentence, impose a more severe sentence than the one originally imposed, even where the original sentence was less severe than that required by mandatory provisions of the Criminal Justice Act 2003. As Lord Scarman explained in Cain [1985] 1 AC 46, a sentence of a Crown Court cannot be a nullity. The lack of requisite severity does not make the sentence unlawful. An extended sentence, for example, passed when the judge ought to have imposed an indeterminate sentence, is not 'beyond' the powers of the court merely because it does not go far enough, and it remains a valid and effective sentence.

Latham LJ concluded (at [24]):

. . . where the judge has properly concluded that the criteria of dangerousness have been met, this court should respect that finding so far as it can. As it is, in our view, unable to substitute the mandatory sentence where the Crown Court has failed to impose it, this court in the exercise of its discretion, should not interfere with the sentence in fact imposed, even though that results in a sentence which is not in accordance with [the terms of the Act].

Author: MH

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

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

Author: MH

D25.1 The Rules

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

Author: MH

D25.1 The Rules and the Guide

The Criminal Procedure (Amendment No. 2) Rules 2007 (SI 2007 No. 2317) amend the principal Rules of 2005 (SI 2005 No. 384). Inter alia they add a new part 65 (appeal to the Court of Appeal: general rules) and replace the provisions formerly found in parts 67 and 68 with new provisions set out in parts 68 and 69.

Author: MH

D25.19 Presence of the Appellant at the Appeal

The Police and Justice Act 2006 (Commencement No. 1, Transitional and Saving Provisions) Order 2006 (SI 2006 No. 3364) brings into force s. 48 of the Act on 15 January 2007. Section 48(1) amends the Criminal Appeal Act 1968, s. 22 so as to provide power for the court to give a direction to the effect that the appellant be permitted to attend the hearing only by live link.

Author: MH

D25.36 Applications to a Single Judge

The Police and Justice Act 2006 (Commencement No. 1, Transitional and Saving Provisions) Order 2006 (SI 2006 No. 3364) brings into force s. 48 of the Act on 15 January 2007. Section 48(3) amends the Criminal Appeal Act 1968, s. 31 so as to provide power for a single judge to give a live link direction.

Author: MH

D26.1 Reference by the Criminal Cases Review Commission

In its exercise of the powers given to it by the Criminal Appeal Act 1995, s. 9, the Commission is under no obligation to have regard to, still less to implement, any practice of the Court of Appeal in relation to extension of time and granting of leave to appeal. Indeed, by s. 9(2), once a reference has been made by the Commission, the need for the leave of the court is removed: R (Director of Revenue and Customs Prosecutions) v Criminal Cases Review Commission [2006] EWHC 3064 (Admin).

Author: MH

July 2007

D26.1 Reference by the Criminal Cases Review Commission

Given that a conviction need not necessarily be quashed merely because of a ruling in Strasbourg that there has been a breach of the ECHR, the Criminal Cases Review Commission are not automatically required to refer such cases to the Court of Appeal. Each case brought before the CCRC must be analysed in the light of the Criminal Appeal Act 1995, s. 13(1)(a). On that basis, the CCRC should refer a case to the court only if there is a real possibility that the conviction, verdict, finding or sentence would not be upheld: R (Dowsett) v Criminal Cases Review Commission [2007] All ER (D) 63 (Jun).

Author: MH

D26.1 Reference by Criminal Cases Review Commission: Change of Law Cases

In Cottrell [2007] EWCA Crim 2016, the Court of Appeal disapproved of the statement in R (Director of Revenue and Customs Prosecutions) v Criminal Cases Review Commission [2006] EWHC 3064 (Admin), [2007] 1 Cr App R 395 that, in its exercise of the powers given to it by the Criminal Appeal Act 1995, s. 9, the CCRC is 'under no obligation to have regard to, still less to implement, any practice of the Court of Appeal in relation to extension of time and granting of leave to appeal'.

Giving the judgment of the court in Cottrell, Sir Igor Judge P said that 'it would be disturbing, and productive of public disquiet, if the Commission were to adopt an approach to change of law cases which conflicted with the approach of the court'. Indeed, it was 'not open to the Commission lawfully to apply a policy' based on the Divisional Court's conclusion in that case.

In cases where the courts have changed their interpretation of the law (e.g., where their initial interpretation of a statute has been reconsidered) this does not ordinarily afford a proper ground for allowing an extension of time in which to appeal against conviction. As stated in Ramzan [2006] EWCA Crim 1974, [2007] 1 Cr App R 150, the practice in such cases is to grant leave to appeal out of time only where substantial injustice would otherwise be caused. Where however the CCRC refers a case to the court, leave to appeal out of time is not required. If the CCRC were to ignore the usual practice of the court and refer cases that the court would not otherwise have been prepared to consider, the practice of the court would be undermined and inconsistencies would inevitably arise.

Author: MH

7 November 2006

D27.45; D13.42 Application for Judicial Review; Attendance of Witnesses

TH v The Crown Court Wood Green [2006] EWHC 2683 (Admin) considers when a matter is barred from judicial review by reason of s. 29(3) of the Supreme Court Act 1981. The claimant, a 17-year-old youth, was a witness in a multi-handed trial alleging violent disorder and serious assault against ten defendants. In view of his reluctance to give evidence, a witness summons was issued against the claimant and, in due course, a warrant for arrest. He was held in custody whilst giving evidence, was treated as a hostile witness, and ultimately, after the Crown had been given an opportunity to re-examine him, the claimant was remanded in custody to a fixed date on the footing that the he remained a potential witness in the case, liable to be recalled, the more so in the view of the stance he took and the way in which he gave his evidence.

The claimant claimed judicial review of the decision to remand him in custody. The respondents contended that the decision was one relating to a trial on indictment so that judicial review was barred by s. 29(3) of the Supreme Court Act 1981.The Court, on a full review of the authorities, concurred. The ordinary meaning of s. 29(3) as applied to this case is that the decision taken in the course of the trial to detain the claimant as a witness pending receipt of further evidence was a matter relating to a trial on indictment. There was no need under s. 3 of the Human Rights Act 1998 to give the section other than its literal meaning.

A claim formulated under the Criminal Procedure (Attendance of Witnesses) Act 1965 was also dismissed. The claimant contended that the order to remand him in custody was unlawful and unreasonable. The Court holds, in answer to argument advanced by counsel, that the judge's power to remand the witness does not expire on the commencement of his evidence but, where necessary, continues until the witness is released from court. Here, there were outstanding issues on which the claimant might have been required to give evidence. Nor was the power exercised unreasonably. The test for the exercise of power under s. 4(3) of the 1965 Act is not whether the actor will be likely to give evidence but whether he is likely to be able to give evidence. By declaring the claimant to be a hostile witness, the trial judge implicitly found that he was able to give material evidence but was declining to co-operate. The judge's decision was not perverse or irrational. He did not misdirect himself in law. So far as the Human Rights Act 1998 was concerned, the claimant's deprivation of liberty was in accordance with law to fulfil an obligation prescribed by law upon him.

Furthermore, it was necessary for the judge to have remanded the claimant to a fixed date. The date chosen was not unreasonable. It provided the necessary specificity and concreteness to comply with the Human Rights Act 1998.

The Court further considered what remedy should have been awarded to the claimant had a violation of the Human Rights Act 1998 been found. Having regard to the circumstances of the case, the court would not have awarded damages but would have regarded a finding of breach as just satisfaction.

Click here for the full text of the judgment.

Author: LL

D29.6 Applying for a Representation Order

The Criminal Defence Service (General) (No. 2) (Amendment) Regulations 2007 (SI 2007 No. 780) increase the financial limits under the principal order inter alia by substituting £201 for £194 in reg. 5(3) and £95 for £92 in reg. 5(5).

Author: MH

June 2007

D29.8 Criminal Defence Service (General) (No. 2) Regulations 2001 (SI 2001 No. 1437) Regs 8 to 10

Regulation 10(5) should be read so as to include the words 'or notice of an application for leave to appeal': Revenue and Customs Protection Office v T [2007] All ER (D) 420 (May).

If read in that way, reg 10(5) would provide:

A representation order shall not be granted until notice of leave to appeal or notice of an application for leave to appeal has been given in respect of the proceedings which are the subject of the application.

Author: MH

D29.16 Criminal Defence Service Act 2006

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Author: MH

D29.34 Orders for Costs against Legal Representatives

The right of a defendant's legal representatives to withdraw from the case should be respected where they genuinely believe that, having regard to the defendant's best interests, he cannot properly be represented by them. The Court of Appeal in Re Boodhoo [2007] EWCA Crim 14 accordingly quashed a wasted costs order which had been made against a firm of solicitors when they withdrew from a criminal trial after the defendant had deliberately absented himself. The court recognised that fundamental questions of trust between lawyers and clients would arise in such cases, as did practical questions as to the conduct of the trial. The solicitors in this case had done all that could reasonably be expected of them. In all the circumstances, they had been entitled to conclude, when informed of the circumstances, that they could not properly represent the defendant at trial.

Author: MH

D30.3 Part 1 of the Act

The Police and Justice Act 2006 (Commencement No. 1, Transitional and Saving Provisions) Order 2006 (SI 2006 No. 3364) brings into force s. 42 of the Act and most of the provisions of sch. 13 to the Act on 15 January 2007. Section 13 makes numerous detailed amendments to the Extradition Act 2003, including amendment of ss. 2 and 11.

Author: MH

D30.13 Part 2 of the Extradition Act 2003

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

Author: MH