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Companion Website
Blackstone's Criminal Practice 2009
December 2007
December Update 2007
Updates to Blackstone's Criminal Practice 2008 are produced by Michael Hirst, Professor of Criminal Justice, De Montfort University, Leicester, and Laurence Eastham, Editorial Co-ordinator, Blackstone's Criminal Practice.
The December update primarily covers developments occurring or reported in November 2007.
- Part A: General Principles of Criminal Law
- Part B: Offences
- Part D: Procedure
- Part E: Sentencing
- Part F: Evidence
- Appendices
- New Legislation
PART A GENERAL PRINCIPLES OF CRIMINAL LAW
A6 Inchoate Offences
See Winter [2007] All ER (D) 440 (Nov) (B1.116 below).
PART B OFFENCES
B1 Homicide and Related Offences
According to the Court of Appeal in Winter [2007] All ER (D) 440 (Nov), the terms of the OAPA 1861, s. 4 are sufficiently wide to include soliciting persons to act as secondary parties to murder (e.g., by recruiting someone to drive a getaway car for the actual killer).
This case may well merit further consideration once a full transcript of the judgment becomes available.
B3 Sexual Offences
B3.8 Rape: Absence of Consent
Bree [2007] 2 All ER 676 (Nov) was considered in Hysa [2007] EWCA Crim 2056. The complainant (C) was a 16-year-old girl who had been drinking heavily and smoking cannabis. She became parted from her friends and got into a car with H and two other men. She did not know them. One of them allegedly fingered her vagina and then another had sexual intercourse with her. This man was clearly identified by DNA evidence as H, although he had denied it. C testified that she did not want to have sex with him, that she did not think that she did so willingly and she did not think that she would have consented. But she could not remember what she had said because she was drunk. Afterwards she ran off crying.
On those facts the trial judge ruled that there was no case to answer, because the evidence as to consent was not clear, but the Court of Appeal allowed a prosecution appeal against that ruling. It would, they said, be open to a jury to regard the circumstances of the case, together with H's evident lies as to whether sexual intercourse had taken place, as providing support for the prosecution case. Hallett LJ said:
Issues of consent and capacity to consent to intercourse in cases of alleged rape should normally be left to the jury to determine. It would be a rare case indeed where it would be appropriate for a judge to stop a case in which, on one view, a 16 year old girl, alone at night and vulnerable through drink, is picked up by a stranger who has sex with her within minutes of meeting her and she says repeatedly she would not have consented to sex in these circumstances.When the trial resumed, H did not testify and the jury took just 40 minutes to convict him of rape.
B3.8 Rape: Absence of Consent
Bree was also distinguished in Wright [2007] All ER (D) 267 (Nov), where in the view of the Court of Appeal there was no issue as to whether the complainant had provided some kind of consent that might then have been vitiated by her intoxication. Instead, there was a stark conflict between the evidence of the complainant, according to which she was unconscious and did not consent in any sense, and the evidence of the appellant, who claimed that she was not unconscious at all, and had taken a full and active role in the sexual act. In those circumstances, no direction as to her capacity was called for.
One might perhaps envisage a case where the complainant actively participates (as in Wright) but then loses consciousness through excessive drinking and on waking has no recollection of the fact that she did in fact consent. But Wright, one hopes, was not such a case.
B4 Theft, Handling and Related Offences
B4.103 Aggravated Vehicle Taking: sentence
In Clifford [2007] EWCA Crim 2442 a sentence of two years' imprisonment (on a guilty plea) was reduced on appeal to one of six months' imprisonment where D had 'borrowed' his partner's car without her consent and had then been involved in a fatal accident that appeared to have been (at least primarily) the fault of the unfortunate child victim, who ran out into the road in front of him.
The child would not have died but for the fact that D had committed the offence, but this causal element involved ill chance rather than culpability, and the offence under the Theft Act 1968, s. 12A, is not strictly speaking one of 'causing death'. When the Road Traffic Act 1988, s. 3ZB, comes into force, a driver in D's position will also be guilty of causing death by driving when uninsured, unlicensed of disqualified. But for the element of unpermitted taking, which brought D within the reach of the more serious aggravated vehicle taking offence, this is exactly the kind of case to which s. 3ZB was designed to apply.
B10 Terrorism, Piracy and Hijacking
B10.23 Terrorist Fund-raising: Specific Defences
The Terrorism Act 2000 and Proceeds of Crime Act 2002 (Amendment) Regulations 2007 (SI 2007 No. 3398) implement, in part, Directive 2005/60/EC of 26th October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing. The Regulations give effect to Chapter 3 of the Directive. Schedule 1 to the Regulations makes amendments to the Terrorism Act 2000. Inter alia it inserts ss. 21ZA to 21ZC which provide additional defences to charges for the offences under ss. 15 to 18 of the Act.
B10.44 Failure to Disclose: Regulated Sector
The Terrorism Act 2000 and Proceeds of Crime Act 2002 (Amendment) Regulations 2007 (SI 2007 No. 3398) implement, in part, Directive 2005/60/EC of 26th October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing. The Regulations give effect to Chapter 3 of the Directive. Schedule 1 to the Regulations makes amendments to the Terrorism Act 2000. Inter alia it amends s. 21A by extending the offence to cover circumstances where the knowledge or suspicion which is not disclosed relates to an attempt to commit an offence. It also inserts ss. 21C to 21H which deal with the additional offence of tipping-off and various defences.
B10.48 Failure to Disclose: Specific Defences
The Terrorism Act 2000 and Proceeds of Crime Act 2002 (Amendment) Regulations 2007 (SI 2007 No. 3398) implement, in part, Directive 2005/60/EC of 26th October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing. The Regulations give effect to Chapter 3 of the Directive. Schedule 1 to the Regulations makes amendments to the Terrorism Act 2000. Inter alia it amends s. 21A by extending the exemption from the duty to disclose to cover a wider range of professional advisers and employees of professional advisers. It also makes an amendment to s. 21B.
B10.85 Disclosure of and Interference with Information Offences
The Terrorism Act 2000 and Proceeds of Crime Act 2002 (Amendment) Regulations 2007 (SI 2007 No. 3398) implement, in part, Directive 2005/60/EC of 26th October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing. The Regulations give effect to Chapter 3 of the Directive. Schedule 1 to the Regulations makes amendments to the Terrorism Act 2000. Inter alia it amends s. 39 to take account of aspects of the defence to the new offence of tipping-off (see B10.44 above).
B12 Offences relating to Weapons
B12.123 Weapons Offensive Per Se
The status of padded and weighted 'self defence gloves' was considered by the Court of Appeal in R (prosecution application under s 58 of the Criminal Justice Act 2003) [2007] All ER (D) 245 (Nov). The court stopped short of holding that such gloves were necessarily offensive weapons per se, but held that there was evidence as to the nature of the gloves from which a reasonable jury could infer that they had been made for use as weapons. It followed that the trial judge was wrong to have withdrawn that issue from the jury and a prosecution appeal against that ruling was allowed. A retrial was ordered.
B21 Offences relating to Dangerous Dogs, Hunting and Animal Welfare
B21.9 Offences involving Hunting with Dogs
The decision of the Court of Appeal in R (on the application of the Countryside Alliance and others) v A-G and others [2007] QB 305 has now been upheld by the House of Lords: see R (on the application of the Countryside Alliance and others) v A-G and others [2007] UKHL 52.
The Appellate Committee agreed that hunting with dogs does not fall within Article 8 of the ECHR. The right to assemble under ECHR, Article 11 is not engaged by the ban imposed by the Hunting Act 2004; Article 1 of the First Protocol is engaged, but any interference with Convention rights is prescribed by law, directed to legitimate aims and both necessary and proportionate.
Any restrictions engaging Articles 28 and 49 of the European Community Treaty were held to pursue legitimate aims and to be proportionate to those aims. The Appellate Committee saw no need no need to refer any of questions for a preliminary ruling to the European Court of Justice.
B22 Offences relating to the Proceeds of Criminal Conduct
B22.4 Authorised Disclosure and Appropriate Consent
The Terrorism Act 2000 and Proceeds of Crime Act 2002 (Amendment) Regulations 2007 (SI 2007 No. 3398) implement, in part, Directive 2005/60/EC of 26th October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing. The Regulations give effect to Chapter 3 of the Directive. Schedule 2 to the Regulations makes amendments to the Proceeds of Crime Act 2002. Inter alia it amends s. 338(3)(b) by substituting the phrase 'he has a reasonable excuse' for 'there is a good reason'.
B22.17 Failure to Disclose Possible Money Laundering
The Terrorism Act 2000 and Proceeds of Crime Act 2002 (Amendment) Regulations 2007 (SI 2007 No. 3398) implement, in part, Directive 2005/60/EC of 26th October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing. The Regulations give effect to Chapter 3 of the Directive. Schedule 2 to the Regulations makes amendments to the Proceeds of Crime Act 2002. Inter alia it amends s. 330 by omitting the word 'other' from the phrase 'other professional adviser' in each of subsections (6)(b), (9A)(a) and (10).
B22.19 Tipping-off and Prejudicing Investigations
The Terrorism Act 2000 and Proceeds of Crime Act 2002 (Amendment) Regulations 2007 (SI 2007 No. 3398) implement, in part, Directive 2005/60/EC of 26th October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing. The Regulations give effect to Chapter 3 of the Directive. Schedule 2 to the Regulations makes amendments to the Proceeds of Crime Act 2002. Inter alia it repeals s. 333 and inserts ss. 333A to 333E which deal with tipping-off in the regulated sector and related defences. It also amends s. 342 to take account of the new provisions on tipping-off.
PART D PROCEDURE
D7 Bail
D7.87 Failure to Surrender to Bail: Sentencing Guidelines
The SGC has issued a new definitive guideline on sentencing for failure to surrender to bail.
Guideline on failure to surrender to bail.
D14 Trial on Indictment: General Matters and Pre-trial Procedures
D14.111 Further Extension of the Use of Live Links
The Criminal Justice Act 2003 (Commencement No. 18 and Transitional Provisions) Order 2007 (SI 2007 No. 3451) brings into force, on 7 December 2007, provisions of the Criminal Justice Act 2003 that enable courts to direct that a witness may give evidence through a live link where this is considered to be in the interests of the efficient or effective administration of justice, namely ss. 51 (live links in criminal proceedings, 52 (effect of, and rescission of, direction), 54 (warning to jury) and 56 (interpretation of part 8). The provisions are brought into force only in relation to proceedings in the Crown Court for the sexual offences specified in art. 2(3) that begin on or after 7 December 2007, namely:
- an offence under part 1 of the Sexual Offences Act 2003 (rape, assault by penetration, sexual assault etc.,
- rape or burglary with intent to rape,
- an offence under any of ss. 2 to 12 and 14 to 17 of the Sexual Offences Act 1956 (unlawful intercourse, indecent assault, forcible abduction etc.),
- an offence under s. 128 of the Mental Health Act 1959 (unlawful intercourse with person receiving treatment for mental disorder by member of hospital staff etc.),
- an offence under s. 1 of the Indecency with Children Act 1960 (indecent conduct towards child under 14), and
- an offence under section 54 of the Criminal Law Act 1977 (incitement of child under 16 to commit incest).
D15 Trial on Indictment: The Prosecution Case
D15.70 Appeals by the Prosecution against Adverse Rulings
One of the restrictions governing the prosecution's right to appeal against adverse rulings at trial is that no such right exists in relation to proceedings that were started prior to the commencement of the Criminal Justice Act 2003, ss. 57 and 58 (i.e. prior to 4 April 2005). The question that arose in B (prosecution application for permission to appeal under s 58 of the CJA 2003) [2007] All ER (D) 46 (Nov) was whether a retrial ordered by the Court of Appeal after that date and on the basis of a fresh indictment represented wholly new proceedings, or whether the retrial followed on from the original proceedings, in which D had been sent for trial before that date.
The Court of Appeal held that the retrial was for these purposes merely a continuation of the original proceedings. It followed that the court had no jurisdiction to hear any appeal against a ruling by the trial judge that was fatal to the prosecution case.
D18 Trial on Indictment: Retirement of the Jury and Verdict
D18.58 Judge's Discretion in Directing Jury as to Alternative Offences
The ruling of the House of Lords in Coutts [2006] UKHL 39, [2006] 1 WLR 2154 were considered (along with other authorities, including Fairbanks [1986] 83 Cr App R 251 and Maxwell [1990] 1 WLR 401) by the Court of Appeal in Foster [2007] EWCA Crim 2869.
The five-judge court in Foster rejected the argument, supposedly derived from Coutts, that whenever the defence advanced by the accused discloses a lesser offence (e.g., theft rather than robbery, or assault rather than attempted murder), the judge must always direct the jury as to the possibility of convicting of this lesser offence. Not every available verdict should be left to the jury.
According to the court in Foster, on analysis of Coutts, three distinct questions arise:
First, whether it is possible to identify when, as a matter of law, the judge's failure to leave an alternative verdict is erroneous. Second, whether the principle extends beyond the ambit of section 6 of the 1967 Act . . . Third, the impact of an erroneous failure by the judge to leave an alternative lesser verdict to the jury on the safety of the conviction in the individual case.As to the first question:
Nothing in the speeches in Coutts suggested expressly, or by necessary implication, that the situation which arises in these appeals, and which has arisen and will no doubt continue to arise in many trials, creates an obligation on the trial judge to leave an alternative lesser verdict whenever the defence to the more serious charge on the indictment involves an admission of a lesser offence. Sometimes it will, but sometimes not . . .As to the second question, namely whether the principles derived from Coutts extend beyond the ambit of alternative verdicts available under the statutory arrangements provided by the Criminal Justice Act 1967, s. 6(2) and (3), the court's reading of Coutts suggested that it did not. It addressed the statutory framework provided by the 1967 Act, but went no further.
The danger highlighted by some of the speeches in Coutts, underlining the duty of the trial judge to leave alternative verdicts to the jury, is the risk that faced with the stark choice between convicting a defendant whose behaviour was on any view utterly deplorable, and acquitting him altogether, the jury may unconsciously but wrongly allow its decision to be influenced by considerations extraneous to the evidence and convict of the more serious charges rather than acquit altogether. In such circumstances to omit directions about a possible lesser alternative verdict may therefore work to the defendant's disadvantage. Coutts itself provides a possible example. However, Coutts does not suggest that such a risk is always present. Indeed our entire system for the administration of criminal justice in the Crown Court depends on the conscientious and impartial determination of the issues by the jury, following and applying the directions of law which they receive from the judge. This principle, too, was unequivocally acknowledged in Coutts.
Accordingly, not every alternative verdict must be left to the jury. In addition to any specific issues of fairness, there is what we shall describe as a proportionality consideration. The judge is not in error if he decides that a lesser alternative verdict should not be left to the jury if that verdict can properly be described in its legal and factual context as trivial, or insubstantial, or where any possible compromise verdict would not reflect the real issues in the case. He must, of course, reconsider any decision he may have reached about alternative verdicts in the light of any question which the jury may see fit to ask, as they did in Fairbanks and Maxwell. However when the defence to a specific charge amounts to the admission or assertion of a lesser offence, the primary obligation of the judge is to ensure that the defence is left to the jury. If it is not, on elementary principles, the summing up will be seriously defective and the conviction will almost inevitably be unsafe. The judgment whether a "lesser alternative verdict" should be left to the jury involves an examination of all the evidence, disputed and undisputed, and the issues of law and fact to which it has given rise. Within that case specific framework the judge must examine whether the absence of a direction about a lesser alternative verdict or verdicts would oblige the jury to make an unrealistic choice between the serious charge and complete acquittal which would unfairly disadvantage the defendant. In this context the judge enjoys "the feel of the case" which this court lacks. On appeal the problem which arises is not whether a direction in relation to a lesser alternative verdict was omitted, and whether its omission was erroneous, but whether the safety of the conviction is undermined.
Coutts itself did not envisage that the broad question relating to lesser alternative verdicts extended outside the statutory framework. In the absence of any indication to this effect, and given that the indictment should reflect the prosecution's case against the defendant, we reject the submission that the principles in Coutts extend beyond the ambit of the statutory framework in the 1967 Act.As to the final question (i.e. the impact of any erroneous failure by the trial judge to leave an alternative lesser verdict to the jury), this would be governed in the usual way by the statutory test relating to the safety, or otherwise, of convictions returned by the jury.
Maxwell has never been overruled, but the view of the court in Foster was that in light of the criticisms made in Coutts (some of which are noted in Blackstone's Criminal Practice at D18.62) the approach taken by Lord Ackner when delivering the opinion of the Appellate Committee in Maxwell is no longer good law:
Lord Ackner's test is no longer applicable. Effectively, it has been extinguished.
D22 Sentencing in the Magistrates' Court
D22.18 Suspended Sentences: Power to Deal with Breaches
In Majury [2007] EWCA Crim 2968, the Court of Appeal offered much needed guidance to magistrates courts and Crown Court judges who have struggled to make sense of the complex and difficult provisions in sch. 12 to the CJA 2003, and in particular the relationship between paras. 8(6) and 11(2) of that schedule and ss. 3 and 6 of the Powers of Criminal Courts (Sentencing) Act 2000. The court considered two conjoined appeals, each involving sentences that were found to be unlawful. Pitchford J explained the law applicable in each case:
9. Paragraph 8(6) applies only to a breach of a suspended sentence order with which the magistrates themselves can deal. Magistrates can deal with breach of a suspended sentence passed by a magistrates' court, or where the breach comprises a failure to comply with a community requirement in a suspended sentence order and the Crown Court directed when the sentence was passed that failures to comply should be dealt with by the magistrates' court: see paragraph 6(2) and paragraph 11(1). Paragraph 8(6) does not apply to breach of a suspended sentence when the sentence was passed by the Crown Court and the breach is comprised in the commission of a further offence. Furthermore, paragraph 11(2) does not apply to new offences committed in breach of the suspended sentence. The subparagraph reads as follows:In the first of the conjoined cases, the two appellants pleaded guilty to five charges of theft by shoplifting and were in breach of a suspended sentence imposed upon them by the Crown Court, also for theft by shoplifting. The justices committed them to the Crown Court under sch. 12. They were committed under para. 8(6) in respect of the breach and under para. 11(2) in respect of the new offences (as was the appellant in the second case). But the Court of Appeal held that this procedure was unlawful. To quote Pitchford J once more:
"Where an offender is convicted by a magistrates' court of any offence and the court is satisfied that the offence was committed during the operational period of the suspended sentence passed by the Crown Court -If the offender is committed to the Crown Court, then the Crown Court can deal with the breach under sch. 12, paragraph 8(1)(b): see paragraph 11(1). If the offender is not committed to the Crown Court, but the Crown Court receives notice of the breach, it can take its own enforcement proceedings by issuing a summons or a warrant for his arrest under paragraph 12(1).
- the court may, if it thinks fit, commit him in custody or on bail to the Crown Court, and
- if it does not, must give written notice of the conviction to the appropriate officer of the Crown Court."
10. Paragraph 11(2) is the successor to section 120(2)(a) of the Powers of Criminal Courts (Sentencing) Act 2000. It does not of itself give to the Crown Court the power to deal with the offences committed during the operational period of the suspended sentence. It is the means by which the breach of the suspended sentence is brought before the Crown Court to be dealt with under paragraph 8(1)(b).
11. The justices undoubtedly intended that all matters should be committed to the Crown Court for sentence at the same time. The new offences were triable either way. What the justices should have done was to decide whether the powers of the Crown Court to sentence for the five new offences should be those of the Crown Court or of the magistrates' court. If the former, then the committal of those offences would take place under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. If the latter, committal would be under section 6 of the same Act.
12. It is apparent that the justices did indeed consider whether to commit under section 3, but decided that their own powers of sentencing were sufficient. Had they wished, they could have sentenced for the five new offences and then committed the appellants to the Crown Court to be dealt with for the breach of the suspended sentence under paragraph 11(2). Instead, they chose to leave the whole sentencing process to the Crown Court. That was undoubtedly an appropriate course to take but they committed the applicant to the Crown Court mistakenly believing that they were achieving that result by committing under paragraphs 8 and 11.
13. Having considered the circumstances of the committal during the course of the hearing of this appeal, counsel are prepared to treat the appeal as one in which a lawful committal took place, but that the powers of the Crown Court in respect of the new offences should be limited to those of the magistrates, which of course is the effect of a committal which takes place under section 6 of the 2000 Act.
14. By section 78 of the Powers of Criminal Courts (Sentencing) Act 2000, and section 133 of the Magistrates' Courts Act 1980, the magistrates', and therefore the Recorder's, powers were limited to six months' custody in respect of any one offence, and twelve months in aggregate, since these were either way offences.
D25 Appeal to the Court of Appeal
D25.15 Determination of Appeals against Conviction
Pendleton [2002] 1 WLR 72, [2001] UKHL 66 was applied in George (No 2) [2007] EWCA Crim 2722, where microscopic evidence of firearms discharge residue (FDR), which had been considered very significant at trial, and at the first appeal, was accepted following a reference by the CCRC to have been both weak and ambiguous. Quashing the conviction, the Court of Appeal concluded (at [54]):
It is impossible to know what weight, if any, the jury attached to the FDR evidence. It is equally impossible to know what verdict they would have reached had they been told as we were told, by the witnesses who gave evidence before us, that it was just as likely that the single particle of FDR came from some extraneous source as it was that it came from a gun fired by the appellant. The verdict is unsafe. The conviction will be quashed.
PART E SENTENCING
E1 Sentencing: General Provisions
E1.2 Sentencing Guidelines
The Sentencing Guidelines Council has published for consultation revised Magistrates' Court Sentencing Guidelines adopting the advice and draft guidelines developed by the Sentencing Advisory Panel, together with a final guideline on sentencing in cases involving a failure to surrender to bail.
Guideline on failure to surrender to bail
Consultation guidelines on Revised Magistrates' Courts' Sentencing Guidelines
E5 Custodial Sentences for Dangerous Offenders
E5.1 Overview of Provisions
Although primarily relevant to the responsibilities of the Secretary of State and the Parole Board in respect of the lawful release of prisoners, rather than to initial questions of sentencing, some of the well publicised problems created by the 'dangerous offender' provisions of the Criminal Justice Act 2003 were considered by the High Court in R (Wells) v Parole Board; R (Walker) v Secretary of State for the Home Department [2007] EWHC 1835 (Admin), (2007) The Times, 11 October 2007, and in R (O'Connell) v Parole Board [2007] EWHC 2591 (Admin).
E5.5 Life Sentence or Imprisonment for Public Protection
In Frota [2007] EWCA Crim 2602, the Court of Appeal emphasised once again that before life sentences are imposed on dangerous offenders the judge must be satisfied that the gravity of the index offence is of itself such as to merit such a sentence. In this case, the offences concerned were unpleasant and violent robberies involving 'car jacking', but the court did not consider them sufficiently grave as to justify life sentences. The life sentences were quashed and replaced by imprisonment for public protection. Mackay J said:
The distinction between the two types of sentence is a fine one, but it is not an insignificant one and it requires careful consideration in each case. It includes, as we have said, a dual consideration the dangerousness of the offender as well as the gravity of the offence or offences. The effect of the distinction is particularly important, in our judgment, with young offenders such as these for if they are released from a sentence of imprisonment for public protection they will have the prospect of being able to demonstrate after 10 years on licence that the licence conditions are no longer warranted and necessary in their case and they can, if successful in so arguing, have the prospect of a life free of any restriction on their autonomy and their liberty. With a life prisoner that is never present. There is therefore arguably an incentive appropriate to be offered to young offenders to that effect, provided the seriousness of the offence does not call for and justify a life sentence.
PART F EVIDENCE
F7 Cross-examination and Re-examination
F7.16 Protection of Complainants in proceedings for Sexual Offences
A number of prosecutions for sexual offences have run into difficulties since the Sexual Offences Act 2003 came into force, as a result of deficiencies in that Act's transitional provisions. See for example A (prosecutor's appeal) [2006] 1 Cr App R 433 (which involved a problem since resolved by the Violent Crime Reduction Act 2006, s. 55).
In Cartwright [2007] EWCA Crim 2581 a further (and previously unsuspected) transitional difficulty came to light. Sexual offences committed before 1 May 2004 remain governed by the old law, but in respect of trials for such offences conducted on or after that date, the Youth Justice and Criminal Evidence Act 1999, s. 41, as amended by the 2003 Act, no longer purports to apply to such trials. Given a literal interpretation, amendments made to that Act by the 2003 Act (without any transitional provision) now leave s. 41 applicable only to those sexual offences that are currently in force.
The Court of Appeal rejected this strictly literal interpretation. If adopted, it would clearly have had consequences not intended or foreseen by Parliament and would have given rise to absurdities, "not simply in some sense of generalised dismay, but within the legislative context itself". On the basis of the more flexible and purposive interpretation adopted by the court, s. 41 thus remains applicable to any prosecutions brought under the old law.
The court nevertheless endorsed Rose LJ's observation in A, that "If a history of criminal legislation ever comes to be written it is unlikely that the 2003 Act will be identified as a year of exemplary skill in the annals of Parliamentary drafting".
F8 Documentary and Real Evidence
F8.38 Views
Hunter [1985] 1 WLR 613, [1985] 2 All ER 173 was distinguished in Turay [2007] EWCA Crim 2821. Although it was unfortunate that the trial judge in Turay allowed the jury to inspect in his absence a vehicle, similar to one involved in the alleged offence irregular, that irregularity could not of itself justify the quashing of a conviction unless it rendered the conviction unsafe. In this case, however, the appellant could not identify any actual damage to his case, or any disadvantage to him or to the trial process itself, and his appeal was dismissed
F9 Public Policy and Privilege
F9.38 Waiver of Legal Professional Privilege
The circumstances in which a claim to privilege in respect of documents will be considered to have been waived were examined in Ahmed [2007] EWCA Crim 2870, in which Moore-Bick LJ stated the following principles (at [21] - [23]):
Legal professional privilege . . . is the right to withhold disclosure of confidential communications between a client and his lawyer brought into being for the purposes of obtaining legal advice and, by extension, the right to withhold disclosure of confidential communications brought into being in connection with and for the purposes of litigation. It applies equally whether disclosure is sought for the purposes of civil or criminal proceedings and whether by the prosecution or the defence: see B v Auckland District Law Society [2003] 2 AC 736, paragraph 44.
It is now established that documents may be disclosed for a limited purpose without waiving privilege generally: see British Coal Corpn v Dennis Rye Ltd (No.2) [1988] 3 All ER 816, approved in B v Auckland District Law Society at paragraph 68. However, if a document or communication is disclosed voluntarily, privilege will normally be lost generally and with it the right to withhold production of other documents or communications relating to the same subject matter, or 'transaction' as it has been referred to in the decided cases. The principle governing the loss of privilege in the transaction generally is one of fairness: it is contrary to the interests of justice to allow a person to disclose a limited range of material relating to a particular matter, perhaps chosen to serve his own interests, while depriving the other party to the litigation of the full picture which the remainder of the material relating to that matter would disclose.
However, the importance of legal professional privilege to the proper administration of justice is such that it should be jealously guarded and it follows that courts should not be astute to hold that a litigant has lost the right to claim privilege save to the extent that justice and the right to a fair trial make that necessary. For that reason we do not think that it is satisfactory to approach the matter in as broad a way as counsel for the appellant suggests. In our view it is necessary to identify the confidential communications which the complainant chose to disclose and see to what extent fairness demands that other documents or communications should also be disclosed.
F12 Evidence of Bad Character of Accused
F12.6 Bad Character and Evidence that 'has to do with the alleged facts'
Difficult questions may sometimes arise as to whether evidence of discreditable behaviour (whether by the defendant or by another person) involves evidence of bad character for the purposes of the Criminal Justice Act 2003, or whether it 'has to do with the alleged facts of the offence with which the defendant is charged', in which case by s. 98(a) the bad character provisions of the Act are inapplicable.
Such a question arose in McNeill [2007] EWCA Crim 2927, in which D was charged with making threats to kill, on the basis that she had threatened to 'cut V into pieces' and burn his property. Two days later, D had an argument with a local housing officer and told him that if her needs were not resolved she would set fire to V's house and those inside would 'come out in body bags'.
At first sight, this would appear to be evidence of a disposition to behave pretty much as V alleged she had behaved during the incident that gave rise to the charge against her. In other words, it appears to be evidence of bad character that might be admissible to prove disposition under s. 101(1)(d), subject to the provisions of the Act and part 35 of the Criminal Procedure Rules.
In McNeill, however, the prosecution argued that the incident with the housing officer was so directly relevant to the alleged offence that it fell within s. 98(a) of the Act. The trial judge and the Court of Appeal agreed.
This was, with respect, a surprising interpretation. It was not a case in which the evidence of the original incident was somehow incomplete without the evidence of the altercation with the housing officer, nor was it analogous to cases in which evidence is given of earlier or later incidents in which the defendant unlawfully acquired or disposed of weapons or vehicles used in the commission of the offence charged.
The evidence would almost certainly have been admissible even if the s. 101 route had been followed. No obvious injustice was done to D, and it is not surprising that an argument for exclusion, based on the Police and Criminal Evidence Act 1984, s. 78, was rejected. The problem with McNeill is that it makes it harder for us to know where evidence concerning the offence itself ends and evidence of bad character begins.
F14 Evidence of Bad character: Persons other than the Accused
F14.7 Evidence of Substantial Probative Value in Relation to a Matter in Issue
The test to be applied under the Criminal Justice Act 2003, s. 100(1)(b) and (3), was considered in Goddard [2007] EWCA Crim 3134. As in Bovell [2005] 2 Cr App R 401, this was a case of alleged violence in which the appellant had sought but failed to obtain leave to adduce evidence as to the previous convictions of the alleged victim (V). It was argued that V's credibility was in issue and that the previous convictions (which included convictions for offences of dishonesty) had substantial probative value in relation to a matter which was in issue in the proceedings, and of substantial importance in the context of the case as a whole. Refusing the application to adduce such evidence, the trial judge said:
Some of the convictions to which the application relates are old or very old, and indeed there is no conviction at all for three years. More significantly though, the nature of the convictions troubles me. It seems to me, and I put this to counsel, that there was a very great difference between evidence of dishonest crime on the one hand, and lying on the other. The latter could perhaps be established by a conviction showing the concocting of false evidence or perhaps of a defendant being disbelieved by a jury at trial.It is open to argument whether, in the case of an application under s. 100, a conviction for an offence of dishonesty really is less significant than evidence of a case in which the witness was (perhaps wrongly) disbelieved by a jury. A dishonest person is unlikely to have too many scruples about lying, if it suits him to do so, and a career robber or burglar is not likely to have any more scruples in that respect than a career fraudster. But the Court of Appeal in Goddard did not go into that question, merely observing that that test to be applied under s. 100(1)(b) differs from that previously applied at common law, under which the question was simply whether the witness's convictions etc. were likely to affect his standing with the court or jury. Under s. 100, the question is whether the evidence in question has substantial probative value in relation to a matter which is in issue in the proceedings and is of substantial importance in the context of the case as a whole. Matters that would have been admissible at common law may not necessarily satisfy the stricter test under s. 100, even where V's credibility is in issue.
On that basis, the trial judge's ruling could not be said to have been 'clearly wrong' and the Court of Appeal declined to interfere.
F16 Exceptions to the Rule against Hearsay
F16.7 Unavailable Witness (cannot be found after taking reasonable steps)
Coughlan [1999] EWCA Crim 553 was considered in Adams [2007] EWCA Crim 3025, in which a witness who had previously confirmed that he would be able to attend the appellant's trial did not attend, and could not be contacted on the day. It transpired that he had taken his wife to a hospital appointment instead. The trial judge allowed his evidence to be read pursuant to the Criminal Justice Act 2003, s. 116(2)(d), but the Court of Appeal disagreed.
The court agreed with the judge that this was a witness who "could not be found" within the meaning of s. 116(2)(d). There was no relevant semantic distinction between "cannot be found" and "cannot be contacted". The witness could not be found at the material time, which was the morning of the trial, and so that part of the test was satisfied. But that alone was not enough, because the Court of Appeal were by no means satisfied that enough had been done to secure his attendance. Hughes LJ said (at [11]- [12]):
The case had been fixed at the case management hearing for 15th January. At some point in September the witness, Mr Chambers, had been spoken to and confirmed that he was in a position to attend. It looks as if that was done by a telephone call. Quite why it was not done until September when the fixed date had been given in July we do not know. We observe in passing that that kind of passage of time has the potential to cause problems. Witnesses may move. If this is symptomatic of the usual practice, it is not good enough. It runs the real risk that a witness may not be found when if prompt contact with him had been made he would have been. It was not, however, the occasion of the problem in this case because he was contacted in September and he was able to confirm that he would attend. However, after whatever conversation there was in September, nothing had then been done until the Friday before the trial was due to start on the Monday. That is to say, the last working day. On the Friday all that happened was that the witness was telephoned on his mobile telephone. He did not answer but there was a voicemail service. A message was left on his mobile telephone. At the trial the officer in the case, who was asked to give evidence about all this, was unable to say who it was who had made the telephone call to the answering service, except that as he understood it, it would be 'someone from the witness care unit of the local authority'. There being no reply to whatever message was left on the mobile telephone, and there was no evidence what the message exactly said, nothing else was done whatever. On Monday morning a further attempt was made to telephone by the officer in the case himself but contact could not be established.It followed that the evidence was not admissible pursuant to s. 116. Clearly, the procedures used to secure the attendance of witnesses, in some court areas at least, will need to be reconsidered in light of this judgment.
The evidence given to the Recorder was that this system was described, apparently amongst those who operate it, as a system of 'overnight call warning'. We do not want to speculate on precisely what that means, but if it means that it is thought to be sufficient to leave a message the night before a witness is due to attend, we desire to say as emphatically as we can that it will not do.
This did not help the appellant, because the matters dealt with by the witness's statement had been largely uncontentious - it related to possession of drugs when the real issue was whether the appellant possessed them with intent to supply. In those circumstances, it had plainly been in the interests of justice for the uncontentious matter of possession to be proved by reading out an edited statement of the witness.
F16.20 Hearsay Admissible in the Interests of Justice
See Adams [2007] EWCA Crim 3025 (F16.7 above).
APPENDICES
Appendix 8 Sentencing Guidelines Council Guidelines
The SGC has issued a new definitive guideline on sentencing for failure to surrender to bail.
Guideline on failure to surrender to bail
NEW LEGISLATION
Proceeds of Crime Act 2002 (Business in the Regulated Sector and Supervisory Authorities) Order 2007 (SI 2007 No. 3287)
This Order amends the meaning of a business in the regulated sector and the meaning of a supervisory authority for the purposes of part 7 of the Proceeds of Crime Act 2002 (money laundering) by substituting new parts 1 and 2 of sch. 9 to that Act. The new provisions implement in part Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing. The amendments to the meaning of a business in the regulated sector reflect the changes to the scope of the regulated sector made by the Directive; two major changes are the expanded definition of a trust or company service provider and the exemption for financial activity on an occasional or very limited basis. The amendments to the meaning of a supervisory authority reflect the requirement of the Directive for all sectors within its scope to be effectively monitored for compliance, and the provision made by the Directive for accountants, auditors, legal professionals and tax advisers to be monitored by a self-regulatory body.
Terrorism Act 2000 (Business in the Regulated Sector and Supervisory Authorities) Order 2007 (SI 2007 No. 3288)
This Order amends the meaning of a business in the regulated sector and the meaning of a supervisory authority for the purposes of part 3 of the Terrorism Act 2000 (terrorist property) by substituting new parts 1 and 2 of sch. 3A to that Act. The new provisions implement in part Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing. The amendments to the meaning of a business in the regulated sector reflect the changes to the scope of the regulated sector made by the Directive; two major changes are the expanded definition of trust or company service provider and the exemption for financial activity on an occasional or very limited basis. The amendments to the meaning of a supervisory authority reflect the requirement of the Directive for all sectors within its scope to be effectively monitored for compliance, and the provision made by the Directive for accountants, auditors, legal professionals and tax advisers to be monitored by a self-regulatory body.
Money Laundering (Amendment) Regulations 2007 (SI 2007 No. 3299)
These Regulations amend the principal Regulations of 2007 (SI 2007 No. 2157). Inter alia they implement in part Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing.
The Proscribed Organisation Appeal Commission (Procedure) (Amendment) Rules 2007 (SI 2007 No. 3377)
These Rules make minor amendments to the principal Rules of 2007 (SI 2007 No. 1286).
Terrorism Act 2000 and Proceeds of Crime Act 2002 (Amendment) Regulations 2007 (SI 2007 No. 3398)
These Regulations implement, in part, Directive 2005/60/EC of 26th October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing. The regulations give effect to Chapter 3 of the Directive. Schedule 1 to the regulations makes amendments to the Terrorism Act 2000. Schedule 2 makes amendments to the Proceeds of Crime Act 2002.
Paragraph 2 of sch. 1 inserts three new sections into the Terrorism Act 2000 to cover the requirements of Article 24 of the Directive. Section 21ZA provides a defence to the offences in ss. 15 to 18 of the Terrorism Act 2000, if the person has made a disclosure to an authorised officer before becoming involved in a transaction or an arrangement and the person acts with the consent of the authorised officer. Section 21ZB provides a further defence to the offences in ss. 15 to 18 to cover those who become involved in a transaction or an arrangement and then make a disclosure, so long as there is a reasonable excuse for failure to make a disclosure in advance. Finally, s. 21ZC provides a defence for those who have a reasonable excuse for failure to make a disclosure.
Article 28.1 of the Directive prohibits the persons covered by the Directive from disclosing to the customer concerned or to other third persons the fact that information about known or suspected money laundering or terrorist financing has been transmitted in accordance with Articles 22 and 23 or that a money laundering or terrorist financing investigation is being, or may be, carried out. The remainder of Article 28 provides a number of exceptions. Paragraph 5 of sch. 1 to the Regulations amends the Terrorism Act 2000 to give effect to Article 28. A new s. 21D contains a new offence of tipping off and new ss. 21E to 21G set out the exceptions from Article 28. Paragraphs 3 and 4 of sch. 2 to the Regulations give effect to Article 28 in the Proceeds of Crime Act 2002. The existing offence of tipping off in s. 333 of that Act is repealed by para. 3. Paragraph 4 inserts a new s. 333A into the Proceeds of Crime Act 2002 to create a new offence of tipping off to cover the regulated sector. New ss. 333B to 333D give effect to the exceptions in Article 28. The regulated sector is defined in sch. 3A to the Terrorism Act 2000 (as amended by the Terrorism Act 2000 (Business in the Regulated Sector and Supervisory Authorities) Order 2007 (see above) and sch. 9 to the Proceeds of Crime Act 2002 (as amended by the Proceeds of Crime Act 2002 (Business in the Regulated Sector and Supervisory Authorities) Order 2007 (see above).
Article 21 of the Directive requires Member States to establish a Financial Intelligence Unit ("FIU"). The Serious Organised Crime Agency is the United Kingdom's FIU. This is further expanded on in Recital 29 of the Directive. Recital 29 makes it clear that reports of suspicious activity may be made to persons other than the FIU so long as the information is forwarded promptly and unfiltered to the FIU. Both the Terrorism Act 2000 and the Proceeds of Crime Act 2002 allow disclosures to be made to a person other than the Serious Organised Crime Agency and so a new s. 21C of the Terrorism Act 2000 (inserted by para. 5 of sch. 1 to the Regulations) and s. 339ZA of the Proceeds of Crime Act 2002 (inserted by para. 7 of sch. 2) give effect to the requirements of Article 21 together with recital 29.
Paragraph 3(2) and para. 4 of sch. 1 to the Regulations amend ss. 21A and 21B of the Terrorism Act 2000 respectively, in order to give full effect to the requirements of Article 22.1 of the Directive. Article 22.1 requires those covered by the Directive to make reports of knowledge and suspicions of money laundering and terrorist financing that have been attempted as well as committed.
Paragraph 3(3) to (6) of sch. 1 amends s. 21A of the Terrorism Act 2000 to give effect to Article 23.2 of the Directive, which provides that Member States are not required to apply the reporting obligations to legal and other professionals when giving legal advice.
The remaining amendments to the Terrorism Act 2000 and the Proceeds of Crime Act 2002 are consequential amendments. The relevant changes appear in paragraph 6 of sch. 1 and paragraphs 2, 5, 6 and 8 of sch 2.
This Order brings into force, on 7 December 2007, provisions of the Criminal Justice Act 2003 that enable courts to direct that a witness may give evidence through a live link where this is considered to be in the interests of the efficient or effective administration of justice, namely ss. 51 (live links in criminal proceedings, 52 (effect of, and rescission of, direction), 54 (warning to jury) and 56 (interpretation of part 8). The provisions are only brought into force in relation to proceedings in the Crown Court for the sexual offences specified in art. 2(3) that begin on or after 7 December 2007. A court may direct that a live link may be used only if it has been notified under s. 51(4)(b) of the Criminal Justice Act 2003 that suitable facilities for receiving evidence through a live link are available in the area in which it appears to the court that the proceedings will take place.
Road Safety (Commencment No. 2) (England and Wales) Order 2007 (SI 2007 No. 3492)
This Order brings ss. 53 and 55 of the Act into force on 28 January 2008 and s. 54 on 31 March 2008. Section 53 and 54 relate to private hire vehciles and s. 55 relates to picnic sites.
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