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Companion Website
Blackstone's Criminal Practice 2007
September 2007
September Update 2007
Updates to Blackstone's Criminal Practice 2007 are produced by Michael Hirst, Professor of Criminal Justice, De Montfort University, Leicester, and Laurence Eastham, Editorial Co-ordinator, Blackstone's Criminal Practice.
The September update primarily covers developments occurring or reported in August 2007.
- Part B: Offences
- Part C: Road Traffic Offences
- Part D: Procedure
- Part E: Sentencing
- Part F: Evidence
- Appendices
- New Legislation
PART B OFFENCES
B2 Non-fatal Offences against the Person
B2.41 Wounding or Causing Grievous Bodily Harm with Intent: Alternative Verdicts
In Banton [2007] EWCA Crim 1847, D was alleged to have deliberately smashed a bottle in V's face after V had stepped on her toes while dancing. D claimed that she had merely thrown a bottle in V's direction after V and her friends had attacked her, but had not meant to cause any injury. Clearly the jury did not believe her. D was convicted on a single count of wounding with intent to do GBH, contrary to the OAPA 1961, s. 18. The jury was not directed as to any alternative verdict, although a verdict of malicious wounding under s. 20 was certainly available to them as a matter of law. In the trial judge's words, prosecuting counsel 'nailed his colours to the s. 18 mast' - if D hit V in the face as alleged, she must, said counsel, have intended to cause serious injury. The prosecution would have no truck with alternative theories as to the bottle being recklessly thrown in V's direction.
On that basis, the Court of Appeal concluded that this was one of the exceptional cases posited in Coutts [2006] UKHL 39, in which directing the jury as to the alternative charge would have infringed D's right to a fair trial. The prosecution was right not to seek to add an alternative s. 20 count to the indictment and the judge was right not to order it.
This may well have been correct if the only possible factual basis of a s. 20 verdict was the 'recklessly thrown bottle' scenario expressly rejected by the prosecution, but (with respect) some jurors might surely have wondered whether D really intended to cause such serious injuries, even if she did she strike V with the bottle in precisely the manner alleged by the prosecution. Not everyone struck with a bottle suffers serious injury. In what sense would D's right to a fair trial have been infringed if the judge had invited the jury to consider the possibility that she did indeed hit V deliberately, as the prosecution alleged, but only with the intention of causing some lesser kind of injury, or perhaps without considering the consequences at all? Counsel may have been reluctant to leave the jury with this 'soft option' to fall back on, but according to Coutts that would not have been a valid reason for the judge to leave the jury without guidance on that issue.
B3 Sexual Offences
B3.283 Outraging Public Decency
In Hamilton [2007] EWCA Crim 2062, D used a camera hidden in a rucksack, to secretly film a number of 'upskirt' videos of women and girls, usually while standing behind them at supermarket checkouts. Only one of his 'subjects' was ever identified: she was a girl aged 14 at the time, and this led to charges under the Child Protection Act 1978, s. 1. He stopped making the videos in 2001, so no question arose of a prosecution under the Sexual Offences Act 2003, s. 67, but it must in any case be doubtful whether any of them could be said to be 'doing a private act' (as defined in s 68) at the relevant time. In respect of the adult subjects, the Crown therefore relied on the common-law offence of outraging public decency, arguing that the requisite elements of that offence were all present: D's conduct was committed in public; it was of such a lewd, obscene and disgusting character as to outrage public decency; and it was at least capable of being seen by those present at the time, had they been more vigilant. The fact that no one actually realised what he was doing did not matter. D however argued that it was necessary for the act to be witnessed by at least one person; and that at least one other person must have been present and capable of witnessing it (relying on Mayling [1963] 2 QB 717). As no one realised what he was doing, no offence was committed.
Having considered Mayling, Knuller Ltd v DPP [1972] 2 All ER 898 and other authorities dating back to Sedley's case (1675) Strange 168, the Court of Appeal concluded that it was necessary to have regard to the purpose of the 'two person' rule. This was concerned only with the necessity for there to be a public element in the sense of more than one person being present and capable of being affected by the offending conduct. In the present case, although no one saw what D was doing, there were indeed others present, and by their verdict the jury must have concluded that D's conduct was capable of being seen by them. His conviction was upheld.
B7 Company, Investment and Insolvency Offences
B7.1 Offences under the Companies Act 1985: General
The Companies Act 2006 (Commencement No. 3, Consequential Amendments, Transitional Provisions and Savings) Order 2007 (SI 2007 No. 2194), as amended by the Companies Act (Commencement No. 4 and Commencement No. 3 (Amendment)) Order 2007 (SI 2007 No. 2607), brings various provisions of the Act into force on 1 October 2007, 1 November 2007, 15 December 2007 and 1 October 2008. The provision of particular interest to criminal practitioners which is brought into force is s. 993 (fraudulent trading), which is in force from 1 October 2007, but a wide range of other offence provisions, and offence-creating provisions which support them, have been brought into force as follows:
- ss. 29 and 30 (resolutions and agreements affecting a company's constitution);
- ss. 116 to 119 (inspection of register of members);
- ss. 145 to 153 (exercise of members' rights);
- s. 154 (companies required to have directors);
- s. 160 (appointment of directors of public company to be voted on individually);
- s. 161 (validity of acts of directors);
- ss. 168 and 169 (removal of directors);
- ss. 170 to 174 and 178 to 181 (general duties of directors);
- ss. 188 to 226 (transactions with directors requiring approval of members);
- ss. 227 to 230 (directors' service contracts);
- s. 231 (contract with sole member who is also a director);
- ss. 232 to 239 (directors' liabilities);
- ss. 248 to 259 (supplementary provisions);
- ss. 260 to 269 (derivative claims and proceedings by members);
- ss. 281 to 287 (general provisions about resolutions);
- ss. 288 to 300 (written resolutions);
- ss. 301 to 307, 310 to 326, 327(1), (2)(a) and (b) and (3), 328, 329, 330(1) to (5), (6)(a) and (b) and (7), 331, 332, 334 and 335 (resolutions at meetings);
- ss. 336 to 340 (public companies: additional requirements for AGMs);
- ss. 341 to 354 (additional requirements for quoted companies);
- ss. 355 to 359 (records of resolutions and meetings);
- ss. 360 and 361 (supplementary provisions);
- s. 417 (contents of directors' report: business review);
- ss. 485 to 488 (appointment of auditors of private companies);
- s. 993 (fraudulent trading);
- ss. 994 to 999 (protection of members against unfair prejudice);
- ss. 1035 to 1039 and 1124 and sch. 3 (company investigations: amendments);
- ss. 1121 to 1123 and 1125 to 1133 (general supplementary provisions relating to offences), as they apply to offences under part 14 or 15 of the 1985 Act.
B11 Offences Affecting Public Order
B11.130 Unauthorised Demonstrations in Designated Areas
Litigation arising from the potential application of the Serious Organised Crime and Police Act 2005, ss. 132 to 138 to Brian Haw's permanent one-man demonstration in Parliament Square against the government's policy on Iraq rumbles on. In DPP v Haw [2007] EWHC 1931 (Admin) (the third such case to be reported) the prosecution appealed against Haw's acquittal on charges of breaking conditions imposed on his demonstration by the police. The Divisional Court confirmed that certain statutory powers given to the Metropolitan Police Commissioner by the SOCPA 2005, s. 134 could properly be exercised by a subordinate on his behalf, but this was of no immediate assistance to the prosecution because the court also agreed with the district judge's conclusion that there was no case to answer because the conditions in question were unworkable and unlawful. More carefully drafted conditions may now be imposed. The court warned Haw that he 'would be well advised to co-operate with the police' in respect of them.
B11.156 Racial and Religious Hatred and Aggravation
The Racial and Religious Hatred Act 2006 (Commencement No. 1) Order 2007 (SI 2007 No. 2490) brings the Act into force, on 1 October 2007, except insofar as it inserts a new s. 29B(3) into the Public Order Act 1986 and in respect of certain provisions of application only in Scotland.
B12 Offences relating to Weapons
B12.95 Offensive Weapons: Reasonable Excuse
In Archbold [2007] EWCA Crim 2137, D was in bed when C started to throw stones at his house and car, in breach of an ASBO. D called the police and then armed himself with a knife for protection before going out to confront C and await arrival of the police. C attacked him with a crowbar, upon which D stabbed and injured C with the knife. He was acquitted of unlawful wounding, to which he pleaded self-defence, but convicted of having an offensive weapon in public on the basis of the judge's direction that D could have had no lawful authority or reasonable excuse for carrying the knife even if had only intended to use it defensively.
Reasonable apprehension of imminent attack may be a lawful excuse for carrying a weapon (Evans v Hughes [1972] 3 All ER 412) but on appeal the Crown sought to support the judge's ruling by arguing that D had not faced such a threat because he could have locked himself indoors to await the police. In other words, D brought about the risk by going out to meet C (cf. Malnik v DPP [1989] Crim LR 451). This argument seems to have met with some sympathy in the Court of Appeal; but the court ultimately took the view that the judge had usurped the jury's role by withdrawing the issue from their consideration. It ought to have been left to the jury, and D's conviction was unsafe.
With respect, a citizen is surely entitled to confront any person attacking his property, without thereby being held responsible for 'creating' a dangerous situation. There is something very unattractive in the argument that a person who sees his car or other property attacked by vandals who may well become dangerous when confronted must either cower inside his house to await the police (who may or may not come in time) or go out unarmed. In such a case, the jury must of course decide whether D went out looking for trouble or whether he meant only to defend himself if attacked. In the latter case, it is submitted that he may indeed have a reasonable excuse for arming himself, and a jury should be directed accordingly.
PART C ROAD TRAFFIC OFFENCES
C2 Evidence and Procedure
C2.12 Alternative Verdicts
The Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472) brings into force, on 24 September 2007, inter alia s. 33 of the Act. Section 33 amends the Road Traffic Offenders Act 1988, s. 24. The effect is that conviction for an offence under any of ss. 1 to 3A of the Road Traffic Act 1988 (causing death by dangerous driving, dangerous driving or causing death by careless driving while under the influence of drink or drugs) or under the Offences against the Person Act 1861, s. 35 (furious driving) is available where a prosecution for manslaughter in connection with driving has been unsuccessful.
C2.15 Duty to Provide Information
The Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472) brings into force, on 24 September 2007, inter alia s. 29 of the Act. Section 29 increases the number of penalty points applicable for the offence under the Road Traffic Act 1988, s. 172 from 3 to 6.
C3 Offences relating to Driving Triable on Indictment
C3.14 Causing Death by Careless Driving when under the Influence of Drink or Drugs
The Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472) brings into force, on 24 September 2007, inter alia s. 31 of the Act. Section 31 amends the Road Traffic Act 1988, s. 3A so as to extend its application to persons who refuse to give permission for a laboratory test.
C3.32 Wanton or Furious Driving: Punishment
The Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472) brings into force, on 24 September 2007, inter alia s. 28 of the Act. Section 28 amends the Road Traffic Offenders Act 1988, sch. 2 so as to add the offence under the Offences against the Person Act 1861, s. 35 (furious driving) to sch. 2, part II, with the effect that the offence is subject to discretionary disqualification and obligatory endorsement (carrying 3 to 9 points).C5 Drink-driving Offences
C5.6 Evidential Specimens
In Breckon v DPP [2007] EWHC 2013 (Admin), the appellant challenged his conviction for a drink driving offence on the basis that the Lion Intoximeter EC/IR machine from which the incriminating reading was obtained was not an approved device. The machine in question used a manual change-over valve, and not an automatic change-over valve as referred to both in a guide to the relevant Type Approval Order and in an agreement between Lion Laboritories and the Home Office.
If upheld, this challenge would have had the potential to cause a major upset, because it appears that all such machines now use manual valves. Kemsley v DPP [2004] EWHC 278 (Admin) indicates that if a device is not the same as that which has been approved, the results of its use cannot be admissible even where it was substantially like an approved device, and even if its performance is the same as that of an approved device.
The court avoided such an awkward conclusion by holding that the key document was the Schedule to the Approval Order dated 25 February 1998, which made no reference to change-over valves. The EC/IR Intoximeter used the gas delivery system and software specified in the Schedule, and on that basis it was an approved device. Nelson J said:
There is no reference, express or implied, in this schedule to either the Agreement with the manufacturer or to the Guide, and I see no reason why those documents should be incorporated within the Approval or why the Approval should be read as being subject to them. The definition of the device, in my judgment, stands by itself in the Schedule to the Approval and does not admit of further identification or specification.
C5.23 Admissibility of Specimens
The Road Traffic Offenders Act 1988, s. 15(2), refers only to evidential specimens (or specimens taken for analysis) under the Road Traffic Act 1988, s. 7, and not to roadside samples taken under s. 6 or s 6A of that Act for the purpose of establishing whether there are grounds to make an arrest (Breckon v DPP [2007] EWHC 2013 (Admin), following Smith v DPP [2007] EWHC 100 (Admin).
C6 Summary Traffic Offences
C6.1 Careless and Inconsiderate Driving
The Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472) brings into force, on 24 September 2007, inter alia s. 30 (to a limited extent) of the Act. Section 30 provides a new statutory definition of careless and inconsiderate driving.
C6.8 Careless and Inconsiderate Driving: Punishment
The Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472) brings into force, on 24 September 2007, inter alia s. 23 of the Act. Section 23 amends the Road Traffic Offenders Act 1988, sch. 2 so as to increase the level of maximum fine for the offence under the Road Traffic Act 1988, s. 3 from level 4 to level 5.
C6.27 Using Vehicle in Dangerous Condition: Punishment
The Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472) brings into force, on 24 September 2007, inter alia s. 25 of the Act. Section 25 amends the Road Traffic Offenders Act 1988, s. 34 and sch. 2 so as to provide for an obligatory disqualification of six months for an offence under the Road Traffic Act 1988, s. 40A if committed within three years of a previous conviction for that offence.
C7 Sentencing Generally
C7.8 Disqualification for Certain Offences
The Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472) brings into force, on 24 September 2007, inter alia s. 25 of the Act. Section 25(2) amends the Road Traffic Offenders Act 1988, s. 34 so as to add a new s. 34(4B), which provides for an obligatory disqualification of six months for an offence under the Road Traffic Act 1988, s. 40A (using vehicle in a dangerous condition etc.) if committed within three years of a previous conviction for that offence.
C7.15 Endorsement
The Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472) brings into force, on 24 September 2007, inter alia s. 14 of the Act. Section 14 amends the Road Traffic Offenders Act 1988, s. 45(7) so as to add a reference to an offence under the Road Traffic Act 1988, s. 7A(6) (failing to allow a specimen to be subjected to a laboratory test) to the list of offences in respect of which endorsement endures for 11 years.
C9 Schedules to the Road Traffic Offenders Act 1988
C9.2 Road Traffic Offenders Act 1988, sch. 2
The Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472) brings into force, on 24 September 2007, inter alia ss. 23, 24, 25, 27, 28 and 29 of the Act, which amend the Road Traffic Offenders Act 1988, sch. 2. Section 23 increases the maximum fine under the Road Traffic Act 1988, s. 3 (careless and inconsiderate driving) from level 4 to level 5. Section 24 increases the maximum fine under the Road Traffic Act 1988, s. 15(4) (driving in contravention of seat belt requirements for children in rear seats) from level 1 to level 2. Section 25 provides that the offence under the Road Traffic Act 1988, s. 40A (using vehicle in a dangerous condition etc.) will carry obligatory disqualification if committed within three years of a previous conviction for that offence. Section 27 increases the maximum fine under the Road Traffic Act 1988, s. 163 (failing to stop when required to do so) from level 3 to level 5 where the offence is committed by a driver (for cyclists the level remains at level 3). Section 28 adds the offence under the Offences against the Person Act 1861, s. 35 (furious driving) to sch. 2, part II, with the effect that the offence is subject to discretionary disqualification and obligatory endorsement (carrying 3 to 9 points). Section 29 increases the number of penalty points applicable for the offence under the Road Traffic Act 1988, s. 172 (duty to give identity of driver) from 3 to 6.
PART D PROCEDURE
D1 Police Powers
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).
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.
D10 The Indictment
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.
D11 Arraignment and Pleas
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.
D13 Trial on Indictment: General Matters and Pre-trial Procedure
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).
D19 Summary Trial: General and Preliminary Matters
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.
D25 Procedure on Appeal to the Court of Appeal
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.
D26 Reference to the Court of Appeal
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.
D26.4 Reference on a Point of Law following Acquittal
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 69 with new rules set out in part 70 (reference to the Court of Appeal of point of law or unduly lenient sentence).
PART E SENTENCING
E22 Recommendation for Deportation
E22.1 Power to Recommend for Deportation
In Chirimimanga [2007] EWCA Crim 1684, the appellants, who were overstayers or failed asylum seekers, pleaded guilty (inter alia) to offences concerning the use of falsified passports (genuine Nigerian or Zimbabwean passports falsified with 'indefinite leave to remain' stamps) in order to obtain employment at a nursing home. One also pleaded guilty to possessing an identity document that related to another, contrary to the Identity Cards Act 2006, s. 25(5). Having imposed sentences of imprisonment, the trial judge recommended that all three be deported on the basis that their offending made it undesirable for them to be allowed to remain.
On appeal, it was argued that the deportation orders were unjustified, having regard to the previous good character of the appellants, the modest level of criminality involved and the fact that they had not entered the country illegally. Furthermore, the judge had failed to give detailed reasons for making his recommendation.
Having considered a wide rang of authorities, including Benabbas [2005] EWCA Crim 2113, Wang [2005] EWCA 293, and Carmona [2006] EWCA Crim 508, the Court of Appeal upheld the deportation orders. The appellants were not merely overstayers but had engaged in forgery and deception. The public interest in preventing the fraudulent use of passports to gain entry or support residence was of considerable importance and deserved protection.
It would have been better if the judge had spelled out in somewhat more detail why, having regard to the appellants' offences, their continued presence in the UK was to its detriment. But failure to do this is not necessarily fatal to a deportation order (see also Bavistock (1993) 14 Cr App R(S) 471; Asinugo [2007] EWCA Crim 114).
PART F EVIDENCE
F6 Examination-in-chief
F6.19 Impeaching Credit of Own Witness
Ross [2007] EWCA Crim 1457 demonstrates that evidence of a witness's previous convictions may in some cases be relevant and admissible for purposes other than impeaching credit. D was prosecuted for money laundering offences allegedly connected to drug trafficking, and C, one of D's alleged accomplices in the drug trafficking, was called as a prosecution witness. C was alleged to have accompanied D on drug trafficking trips abroad, and to have sold him a car that also represented criminal property. C had previous convictions for drug-related offences, inlcuding one for possession with intent to supply. Before the trial, the prosecution applied to admit those convictions in evidence. D protested that this would involve discrediting their own witness. Even where a witness is declared hostile, he cannot be discredited in this way by the party calling him.
When the application was made, however, it did not appear to the judge that the prosecution would be doing any such thing. The judge expected C to confirm that the trips made with D were connected with drug trafficking, and in that context his convictions would have tended to 'fit' his testimony, rather than discredit it. In the event, C claimed that the trips were made for quite different purposes, and this gave a wholly different complexion to the evidence of his convictions. There was, accordingly, an irregularity in this aspect of the trial; but despite it the Court of Appeal was satisfied that D's conviction was safe.
APPENDICES
Appendix 1 Criminal Procedure Rules 2005 (SI 2005 No. 384)
The Criminal Procedure (Amendment No. 2) Rules 2007 (SI 2007 No. 2317)(SI 2007 No. 2317) add new provisions to the CrimPR, with effect from 1 October 2007 and make certain additional minor amendments. The new rules are as follows:
- r. 37.6 (application to change a plea of guilty in summary proceedings);
- r. 39.3 (application to change a plea of guilty in a trial on indictment);
- part 65 (appeal to the Court of Appeal: general rules);
- part 66 (appeal to the Court of Appeal against ruling at preparatory hearing);
- part 67 (appeal to the Court of Appeal against ruling adverse to prosecution);
- part 68 (appeal to the Court of Appeal about conviction or sentence);
- part 69 (appeal to the Court of Appeal regarding reporting or public access restriction);
- part 70 (reference to the Court of Appeal of point of law or unduly lenient sentencing).
- r. 2.2 (definitions) is amended to provide definitions of 'business day', 'live link' and 'public interest ruling';
- part 63 (appeal to the Crown Court against conviction or sentence) is amended to extend the ambit of those rules to an appeal by a prosecutor under s. 14A(5A) of the Football Spectators Act 1989 (failure to make a football banning order) and to provide that the Crown Court may, in certain circumstances, enter on an appeal with the judge sitting with a single justice when hearing an appeal from a magistrates' court;
- part 74 (appeal to the House of Lords) is amended in consequence of differences between the new parts 67 and 70 and the provisions which they replace.
NEW LEGISLATION
Criminal Justice and Court Services Act 2000 (Amendment) Order 2007 (SI 2007 No. 2171)
This Order 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).
Companies Act 2006 (Commencement No. 3, Consequential Amendments, Transitional Provisions and Savings) Order 2007 (SI 2007 No. 2194)
This Order brings various provisions of the Act into force on 1 October 2007, 1 November 2007, 15 December 2007 and 1 October 2008. The provision of particular interest to criminal practitioners which is brought into force is s. 993 (fraudulent trading), which is in force from 1 October 2007, but a wide range of other offence provisions, and offence-creating provisions which support them, have been brought into force as follows:
- ss. 29 and 30 (resolutions and agreements affecting a company's constitution);
- ss. 116 to 119 (inspection of register of members);
- ss. 145 to 153 (exercise of members' rights);
- s. 154 (companies required to have directors);
- s. 160 (appointment of directors of public company to be voted on individually);
- s. 161 (validity of acts of directors);
- ss. 168 and 169 (removal of directors);
- ss. 170 to 174 and 178 to 181 (general duties of directors);
- ss. 188 to 226 (transactions with directors requiring approval of members);
- ss. 227 to 230 (directors' service contracts);
- s. 231 (contract with sole member who is also a director);
- ss. 232 to 239 (directors' liabilities);
- ss. 247 to 259 (supplementary provisions);
- ss. 260 to 269 (derivative claims and proceedings by members);
- ss. 281 to 287 (general provisions about resolutions);
- ss. 288 to 300 (written resolutions);
- ss. 301 to 307, 310 to 326, 327(1), (2)(a) and (b) and (3), 328, 329, 330(1) to (5), (6)(a) and (b) and (7), 331, 332, 334 and 335 (resolutions at meetings);
- ss. 336 to 340 (public companies: additional requirements for AGMs);
- ss. 341 to 354 (additional requirements for quoted companies);
- ss. 355 to 359 (records of resolutions and meetings);
- ss. 360 and 361 (supplementary provisions);
- s. 417 (contents of directors' report: business review);
- ss. 485 to 488 (appointment of auditors of private companies);
- s. 993 (fraudulent trading);
- ss. 994 to 999 (protection of members against unfair prejudice);
- ss. 1035 to 1039 and 1124 and sch. 3 (company investigations: amendments);
- ss. 1121 to 1123 and 1125 to 1133 (general supplementary provisions relating to offences), as they apply to offences under part 14 or 15 of the 1985 Act.
Regulation of Investigatory Powers Act 2000 (Commencement No. 4) Order 2007 (SI 2007 No. 2196)
This Order 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.
Regulation of Investigatory Powers (Acquisition and Control of Communications Data: Code of Practice) Order 2007 (SI 2007 No. 2197)
This Order provides that the Code of Practice in question is to come into force on 1 October 2007.
Regulation of Investigatory Powers (Investigation of Protected Electronic Information: Code of Practice) Order 2007 (SI 2007 No. 2200)
This Order provides that the Code of Practice in question is to come into force on 1 October 2007.
Criminal Procedure (Amendment No. 2) Rules 2007 (SI 2007 No. 2317)
These Rules add new provisions to the CrimPR, with effect from 1 October 2007 and make certain additional minor amendments. The new rules are as follows:
- r. 37.6 (application to change a plea of guilty in summary proceedings);
- r. 39.3 (application to change a plea of guilty in a trial on indictment);
- part 65 (appeal to the Court of Appeal: general rules);
- part 66 (appeal to the Court of Appeal against ruling at preparatory hearing);
- part 67 (appeal to the Court of Appeal against ruling adverse to prosecution);
- part 68 (appeal to the Court of Appeal about conviction or sentence);
- part 69 (appeal to the Court of Appeal regarding reporting or public access restriction);
- part 70 (reference to the Court of Appeal of point of law or unduly lenient sentencing).
- r. 2.2 (definitions) is amended to provide definitions of 'business day', 'live link' and 'public interest ruling';
- part 63 (appeal to the Crown Court against conviction or sentence) is amended to extend the ambit of those rules to an appeal by a prosecutor under s. 14A(5A) of the Football Spectators Act 1989 (failure to make a football banning order) and to provide that the Crown Court may, in certain circumstances, enter on an appeal with the judge sitting with a single justice when hearing an appeal from a magistrates' court;
- part 74 (appeal to the House of Lords) is amended in consequence of differences between the new parts 67 and 70 and the provisions which they replace.
Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472)
This Order brings the following provisions of the Act into force on 24 September 2007: ss. 14, 23 to 25, 27 to 33 (but s. 30 is in force only insofar as the RTA 1988, s. 3ZA has effect for the purposes of ss. 3 and 3A of that Act), 41, 43 and (for certain limited purposes) 59 and sch. 7, paras. 5 and 13.
Racial and Religious Hatred Act 2006 (Commencement No. 1) Order 2007 (SI 2007 No. 2490)
This Order brings the Act into force, on 1 October 2007, except insofar as it inserts new ss. 29B(3) and certain provisions of application only in Scotland.
Electronic Commerce Directive (Racial and Religious Hatred Act 2006) Regulations 2007 (SI 2007 No. 2497)
These Regulations include provision for the application of the 2006 Act to information society services and particularly to Internet Service Providers and the like. They ensure that offences under part 3A of the Public Order Act 1986 (which are created by the 2006 Act) apply on a country of origin basis and create exceptions from liability in respect of the offences for intermediary providers of information society services where their role is limited to that of a mere conduit or they merely provide caching or hosting services.
Violent Crime Reduction Act 2006 (Commencement No. 4) Order 2007 (SI 2007 No. 2518)
This Order brings into force, on 1 October 2007, s. 41 of the Act (increase of maximum sentence for possessing an imitation firearm) and related provisions.
Firearms (Amendment) Rules 2007 (SI 2007 No. 2605)
These Rules amend both the principal Rules of 1998 (SI 1998 No. 1941) and sch. 4 to the Firearms Act 1968 (particulars to be entered by firearms dealer in register of transactions). Both sets of amendments relate to the extended controls on the sale of air weapons by virtue of the Violent Crime Reduction Act 2006, ss. 31 and 32.
Violent Crime Reduction Act 2006 (Realistic Imitation Firearms) Regulations 2007 (SI 2007 No. 2606)
These Regulations make provision in connection with the realistic imitation firearms provisions of the Violent Crime Reduction Act 2006 (ss. 36 to 38 and sch. 2, paras. 4 to 6).
Regulation 3 provides for defences to the offences of the manufacture, import and sale of realistic imitation firearms. These defences will operate where a person who is charged with such an offence can show that his conduct was for the purpose only of making the imitation firearm in question available for one or more of the purposes specified in reg. 3(2). Regulation 4 makes provision dealing with the burden of proof for these defences.
Regulation 5 describes persons who organise and hold historical re-enactments for the purpose of the defence to offences under s. 36 and sch. 2, para. 4 as set out in s. 37(2)(e) and sch. 2, para. 5(2)(e).
Regulations 6 and 7 make provision in connection with the definition of 'realistic imitation firearm'. They specify the sizes and colours and nature of materials which are to be regarded as unrealistic for a real firearm (e.g. the use of bright orange or transparent material will render the product unrealistic).
Companies Act 2006 (Commencement No. 4 and Commencement No. 3 (Amendment)) Order 2007 (SI 2007 No. 2607)
This Order brings into force provisions concerning the making of regulations, including regulations about fees. It also has the effect of amending the Commencement No. 3 Order, especially in relation the obligation to send copies of resolutions to the registrar of companies, so as to avoid gaps which otherwise would have arisen from premature repeals.
Youth Courts (Constitution of Committees and Right to Preside) (Amendment) Rules 2007 (SI 2007 No. 2622)
The Rules make a minor amendment to the principal Rules (SI 2007 No. 1611) in relation to the election of a chairman or deputy chairman.
Courts Act 2003 (Commencement No. 13) Order 2007 (SI 2007 No. 2706)
This Order brings s. 50(2) and (3) into force on 5 September 2007. These provisions repeal provisions of the Children and Young Persons Act 1933 concerning the composition of youth courts. Those provisions are now superseded by the the Youth Courts (Constitution of Committees and Right to Preside) Rules 2007 (SI 2007 No. 1611), which came into force on 13 July 2007.
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