Email this to a Friend

Printer-Friendly View

Blackstone's Criminal Practice 2009

Updates

February 2008

You are here: Home > Academic, Professional, & General Blackstone's Criminal Practice 2009 Updates > February 2008

Companion Website

Blackstone's Criminal Practice 2009

February 2008

February Update 2008

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 February update primarily covers developments occurring or reported in January 2008.

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

PART B OFFENCES

B7 Company, Investment and Insolvency Offences

B7.34 Misconduct in the Course of Winding Up

In R (Griffin) v Richmond Magistrates' Court [2008] EWHC 84 (Admin) the defendant's company went into insolvent liquidation and he was charged with failing to deliver up books and papers of the company to the liquidator, contrary to the Insolvency Act 1986, s. 208(1)(c). By s. 208(4), it is a defence for a person charged under that section to prove that he had no intent to defraud. A question arose as to whether this should be construed, despite the ECHR, Article 6(2) and the Human Rights Act 1998, as imposing a full persuasive burden of proof on the defendant. The Divisional Court held that it should be so construed. Having considered Carass [2002] 1 WLR 1736, [2001] EWCA Crim 2845; Daniel [2002] EWCA Crim 959; A-G's Ref (No. 1 of 2004) [2004] EWCA Crim 1025, [2005] 4 All ER 457 and Sheldrake v DPP [2004] UKHL 43, [2005] 1 All ER 237, Jack J said (at [29]):

In order to prove an offence under section 208(1)(c) the prosecution must establish that the defendant officer of the company has not delivered up to the liquidator company books and papers which he has in his custody or has under his control, and which he is in law required to deliver up. It is not here disputed that Mr Griffin was required in law to deliver up the company's books etc which were in his custody or control. The essence of the offence thus lies in the officer's failing to hand over company documents which he has and which he is required by law to hand over. So he faces punishment because he has failed to do what the law required of him in a situation where there would ordinarily be little doubt what his duty was. Nonetheless he is given the opportunity by section 208(4) to prove that he had no intent to defraud. That would ordinarily involve him showing why it was that the books etc were not delivered up. There is some parallel with section 206, and I would myself find it surprising if a legal burden were permissible in the one case but not in the other. There is a clear distinction for the present purpose between these sections and section 357(1)(c). The severe maximum penalty carried by section 206 did not affect the conclusion of Lord Bingham [in Sheldrake] that Carass was wrongly decided. Further the reason why delivery up did not occur is a matter which is likely to be much more within the knowledge of the defendant than within the knowledge of the prosecution. All these factors point to the conclusion that it is reasonable in the case of section 208(1)(b) for the balance between the presumption of innocence and the reverse burden in section 208(4)(a) to be struck in favour of the latter. I would accordingly hold that section 208(4)(a) is not to be read down as providing an evidential burden only, but should be construed as imposing a legal burden consistently with Article 6(2).

B14 Offences against the Administration of Justice

B14.34 Interfering with Witnesses

Kellett [1976] QB 372 was considered in T [2008] EWCA Crim 183, in which the court cited and applied this passage from the judgment given by Stephenson LJ:

We would not consider that the offence of attempting to pervert the course of justice would necessarily be committed by a person who tried to persuade a false witness, or even a witness he believed to be false, to speak the truth or to refrain from giving false evidence.

[but] we think that however proper the end, the means must not be improper. Even if the intention of the meddler with a witness is to prevent perjury and injustice, he commits the offence if he meddles by unlawful means.

B21 Dangerous Dogs

B21.4 Definitions

Fellowes v DPP (1993) 157 JP 936 was applied in Bogdal [2008] EWCA Crim 1. The Dangerous Dogs Act 1991, s. 3(1), does not apply where dogs are dangerously out of control on private gardens, paths or driveways, even if such gardens, paths or driveways are used by postmen and other legitimate visitors. The driveway that fell to be considered in Bogdal was in fact a shared driveway, and the trial judge ruled that this enabled Fellowes to be distinguished, but the Divisional Court disagreed.

The court accepted that the borderline between private and public places might not always be easy to define, and there would be some doubtful cases; but in this case the shared driveway on which the alleged offence has been committed was clearly private property.

PART D PROCEDURE

D1 Powers of Investigation

D1.1 Police Powers in the Investigation of Crime

The Police and Criminal Evidence Act 1984 (Codes of Practice Order) 2008 (SI 2008 No. 167) provides for new Codes A to E to take effect from 1 February 2008.

D1.37 The Right to Consult a Solicitor

The Police and Criminal Evidence Act 1984 (Codes of Practice Order) 2008 (SI 2008 No. 167) provides for new Codes A to E to take effect from 1 February 2008. The new Code C includes a change to para. 6.1 so as to remove the reference to 'a duty solicitor'. New notes for guidance are added covering the methods by which legal advice may be obtained, including reference to the Defence Solicitor Call Centre.

D1.75 Drug Testing for Class A Drugs: Consequences of a Positive Drug Test

The Police and Criminal Evidence Act 1984 (Codes of Practice Order) 2008 (SI 2008 No. 167) provides for new Codes A to E to take effect from 1 February 2008. The new Code C includes a change to para. 17.16(b). It now provides that a sample taken under the Police and Criminal Evidence Act 1984, s. 63B, for the purpose of testing for the presence of Class A drugs, can be disposed of as clinical waste unless it is to be sent for further analysis in cases where the test result is disputed at the point when the result is known, or where medication has been taken, or for quality assurance purposes. The new Code C also alters paras. 17.17 to 17.20 to make provision for the detainee's presence for a follow-up drug assessment where one is necessary.

D3 Courts, Judges and Parties

D3.56 Abuse of Process: Magistrates' Courts

In DPP v B [2008] EWHC 201 (Admin), it was submitted that, where the prosecution had made a deliberate decision to charge a single offence, despite D's admission to a series of such offences, it should not be permitted to reverse that decision and prefer further charges, even at the suggestion of the judge to whom D had been committed for sentence.

The Divisional Court disagreed. The addition of further charges was not unfair and was not an abuse of process. Proceedings should be stayed as an abuse of process only in very exceptional circumstances, where the consequence of proceeding would be injustice or where the circumstances that had given rise to the proceedings offended one's sense of overall justice. But in this case the judge had been right to object to that fact that a single charge failed to reflect the true extent of D's criminality, and the prosecution had been right to do as he suggested.

D3.79 Sitting in Camera

The CrimPR, r. 16.10 was examined in Yam [2008] All ER (D) 212 (Jan). The court held that r. 16.10 was procedural and that the power to hear evidence in camera was not confined by terms of that rule. The rule did not itself confer power to hold all or part of a trial in camera for reasons of national security or for the protection of the identity of a witness or other person; but there is instead an inherent power to exclude the press and public where the interests of justice so require. The interests of justice could not however justify such a procedure if the consequence would be that the trial became unfair

D15 Trial on Indictment: The Prosecution Case

D15.70 Appeals by the Prosecution against Adverse Rulings

Although the Criminal Justice Act 2003, ss. 62 to 67 (concerning prosecution appeals against qualifying evidentiary rulings) have not yet been brought into force, a trial judge's ruling on an evidential issue (e.g., as to the inadmissibility of prosecution evidence) may nevertheless be a 'ruling which relates to one or more offences included in the indictment' so as to allow a prosecution appeal under the CJA 2003, ss. 58 to 61, which are now in force. In Prosecution Appeal (No. 2 of 2008) [2008] EWCA Crim 10, the Court of Appeal accordingly ruled that they had jurisdiction under s. 58 to consider an appeal against a trial judge's ruling on the admissibility of hearsay evidence that potentially incriminated the defendant. Hughes LJ explained:

22. . . . As a matter of ordinary language this clearly is a ruling which relates to the counts on the indictment. It relates to them because it is a decision about what evidence is admissible for the Crown in its attempt to prove them. The matter is made quite clear by s. 62(11) which expressly contemplates that an evidentiary ruling within s. 62 may also be the subject of a s. 58 appeal. Although that section is not in force, its appearance in the statute as passed by Parliament is a powerful aid to construction.

23. There is thus no reason why a single ruling should not qualify both as a s. 58 ruling in relation to a count on the indictment (assuming the Crown to agree to acquittal if the appeal fails) and also as an evidentiary ruling under s. 62, in respect of which the right of appeal will be broader if implemented. In the ordinary language of the criminal trial, many rulings made daily by trial judges can properly be described both as relating to counts on the indictment and as being evidentiary. The difference between the two types of interlocutory appeal lies in the s. 58(8) condition. Given the enormous practical difficulties created by interlocutory appeals for the work of this court and, much more importantly, for the progress of trials before juries in the Crown Court, it is not surprising that the former group of provisions should have been brought into force and not the latter.

D30 Public Funding and Costs

D30.5 Nature of Representation

The Criminal Defence Service (Very High Cost Cases) Regulations 2008 (SI 2008 No. 40) apply to cases where a case becomes classified as a very high cost case. In those circumstances, the Legal Services Commission is no longer bound to fund representation by the defendant's legal representative of that representative is not a member of the Very High Cost Case (Crime) panel. The defendant must, if funding is to continue, choose a representative from that panel.

PART F EVIDENCE

F3 Burden of Proof

F3.19 Incidence of the Legal Burden: Human Rights Act 1998

Carass [2002] 1 WLR 1736, [2001] EWCA Crim 2845; Daniel [2002] EWCA Crim 959; A-G's Ref (No. 1 of 2004) [2004] EWCA Crim 1025, [2005] 4 All ER 457 and Sheldrake v DPP [2004] UKHL 43, [2005] 1 All ER 237 were considered by the Divisional Court in R (Griffin) v Richmond Magistrates' Court [2008] EWHC 84 (Admin).

The defendant's company went into insolvent liquidation and he was charged by the Department of Business Enterprise and Regulatory Reform with failing to deliver up books and papers of the company to the liquidator, contrary to the Insolvency Act 1986, s. 208(1)(c). By s. 208(4), it is a defence for a person charged under that section to prove that he had no intent to defraud. A question arose as to whether this should be construed, despite the ECHR, Article 6(2) and the Human Rights Act 1998, as imposing a full persuasive burden of proof on the defendant. In Carass, it had been held that the Insolvency Act 1986, s. 206, which in certain respects is similar, required reading down so as to impose only an evidential burden on the defendant, but Carass was disapproved both in A-G's Ref (No. 1 of 2004) and in Sheldrake; and the Divisional Court understandably declined to apply it. A persuasive burden of proof was lawfully placed on the defendant.

On the facts, however, it seemed clear that there was indeed no intent to defraud, and the defendant's conviction was quashed. See also B7.34.

F6 Examination-in-chief

F6. 33 Evidential Value of Previous Inconsistent Statement

At common law, if the prosecution called a witness who went back on his original statement and refused to incriminate the defendant(s), even when cross-examined as a hostile witness, then (in the absence of other sufficient evidence of guilt) the prosecution case would necessarily fail. The statement itself was hearsay and could not be treated as evidence in the case. The Criminal Justice Act 2003, s. 119, effectively changed that rule, by permitting the court or jury to rely upon the witness's original statement in such a case. But this does not necessarily mean that it would be safe or appropriate for the issue to be left to the jury. As was noted in Joyce [2005] EWCA Crim 1785, the court's power to admit such evidence is necessarily subject to its power to exclude prosecution evidence under the Police and Criminal Evidence Act 1984, s. 78, and to the specific duty to stop a prosecution case under the CJA 2003, s. 125, where it depends on hearsay evidence that is so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence on that basis would be unsafe. In Joyce, Rose LJ said:

It is submitted, and we accept, that section 125 should not be regarded as requiring a higher standard than Galbraith. But it provides, in accordance with the Law Commission's recommendation in paragraphs 11.31 and 11.32 of their report, an additional safety valve obliging a judge to direct an acquittal where the previous statements are particularly unpersuasive.

The issue came once more before the court in Bennett [2008] EWCA Crim 248. Here the appellants were charged with wounding with intent and attempting to cause grievous bodily harm after allegedly using a car to deliberately run down the complainants. J was identified as one of the passengers in the car. He made a statement incriminating the appellants, but at court he resiled from this, and persisted in claiming that he did not remember what had happened even when his statement was put to him as a hostile witness. J was a convicted drug user and of bad character. The jury were nevertheless permitted to consider J's original statement, which was in some (but only limited) respects supported by other witnesses. The jury convicted and this conviction was upheld on appeal, where Judge P said:

The plain fact is that the provisions with which we are concerned in this case (essentially section 119) have undoubtedly changed the landscape of a criminal trial. It is now possible to put before juries evidence which was previously inadmissible. That seems to us simply to be the inevitable consequence of the statutory provisions. The protection for defendants is contained in the provisions which the appellants have prayed in aid, namely section 78 and section 125 of the 2003 Act and indeed by the fact that when considering how to approach submissions in relation to section 78 in this type of situation the court is greatly helped by the provisions of section 114(2) of the 2003 Act. The Recorder accorded to the appellants in this case full consideration of those safeguards. He did not, in our judgment, err his application of them. It has to be remembered that this is not a case where the evidence of the interviews was put before the jury in a vacuum. There was the other material to which we have referred, which was at least consistent with the basic thrust of the content of the interviews. In those circumstances, provided that the jury was given proper warning as to how to approach this material, it seems to us that the judge was perfectly entitled to ask the jury to consider it.

F7 Cross-examination

F7.16 Protection of Complainants in Proceedings for Sexual Offences

The Youth Justice and Criminal Evidence Act 1999, s. 41, fell to be considered once again in Winter [2008] EWCA Crim 3. The appellant and complainant, who were acquaintances, had each been drinking heavily. They met up at a club, where there was evidence of flirtatious behaviour between them, and went back to his house by taxi. Sexual activity involving digital penetration of her vagina then took place. He said this was fully consensual; she said it was not. She also claimed that he raped her (indeed she initially said nothing about digital penetration) but he was convicted only of assault by penetration. Astonishingly, the Court of Appeal did not consider that there was any inconsistency in this aspect of the jury's verdicts, even though this surely was a case in which the credibility of the protagonists was utterly crucial.

As to the s. 41 issue, this focused primarily on whether the jury should have been told that the complainant had been having an affair with another man, S, behind her regular partner's back. There were two principal reasons why, according the appellant, this evidence might be relevant. One was that she has initially told the police of a close and loving relationship with her partner, and only later admitted that she had in fact been cheating on him. She was, in other words, a liar, and this reflected on her credibility. The second argument was that, since she had allegedly told the appellant about S, he may have believed that she was likely to be willing to cheat on her partner with him as well. As counsel put it, "he may have interpreted that as a green light as regards the possibility of a sexual encounter between the two of them".

The Court of Appeal dismissed both arguments. As to the first point, the court was not satisfied that her initial failure to mention the affair with S made her a liar in the first place; but, even if it did, the judge was right to rule the matter inadmissible under s. 41(4). The proposed questions were designed to impugn her credibility by eliciting the fact that she was having a relationship with S and thus ran straight into the statutory prohibition.

With respect, whilst s. 41 may indeed have been engaged, this was not an attempt to argue that her infidelity affected her credibility. The argument was that her willingness to lie about it damaged her credibility. The Court of Appeal's approach appears to give s. 41(4) an alarmingly wide field of application.

As to the second argument, the court noted that s. 41 was specifically intended to stifle the reasoning behind it. Rightly or wrongly, evidence of a complainant's willingness to have sex with a third party on some other occasion cannot of itself be interpreted as making it more likely that she would be willing to have sex with the defendant on this occasion. As for the argument that it may have made the appellant think that she would be willing, the court was equally dismissive. Rix LJ said:

In A (No. 2) [2001] EWCA Crim 4 this court held that it would be quite inappropriate to tell the jury that evidence or answers to questions about the complainant's sexual behaviour were admissible on the issue of belief in consent, but not admissible on the issue of actual consent; see Rose LJ's reference to Lewis Carroll, para 7. Nothing in the decision of the House of Lords in that case suggests that that was wrong, see esp. per Lord Steyn at para 35.

Rix LJ concluded:

The real question is whether the appellant has been deprived of a fair trial by the judge's decision to exclude the questions which Miss Masselis desired to ask. If he was, there would be a breach of Article 6 of the European Convention of Human Rights and the conviction would then have to be quashed. We do not consider he was so deprived.

F12 Evidence of Bad Character of Accused

F12.22 Propensity as an Issue

Where D admits using violence on P, but denies doing so with a specific intent to kill or cause serious injury (e.g., he admits manslaughter but denies murder) is evidence admissible under the Criminal Justice Act 2003, s. 101(1)(d), to show that he is of bad character in the sense of having convictions for lesser offences of violence? If the convictions were for offences such as attempted murder or wounding with intent to do grievous bodily harm, there would almost certainly be little problem in establishing their relevance to his propensity, but such relevance is clearly much harder to establish where they were only for offences such as assault.

The question arose in B [2008] EWCA Crim 4. In this case, the prosecution asserted that D's previous convictions demonstrated a propensity to violence, which made it more likely than might otherwise have been the case that he was guilty of murder. The trial judge ruled that D's convictions were indeed admissible but, when directing the jury as to proof of intent (which was in effect the only issue in dispute), he did not suggest that D's convictions threw any light on that issue.

The Court of Appeal held that the judge had erred in principle. If the convictions had no real bearing on intent then they were of no real relevance. The fact that the CJA, s. 103(1), seemed to include questions of propensity among the matters in issue should not be overstated to the extent that sight was lost of the need for basic relevance.

The court certified a question of law for possible consideration by the House of Lords, namely:

Where the sole outstanding issue at trial is the defendant's intention to cause grievous bodily harm, are previous convictions demonstrating a propensity to commit offences of violence, but not a propensity to commit offences of that specific intent, admissible as evidence of his bad character, pursuant to the CJA 2003, s. 101(1)(d)?

F13 Character Evidence: Accused's Good Character

F13.8 Absence of Previous Convictions etc

In Doncaster [2008] EWCA Crim 5, the Court of Appeal considered the judge's duty to balance evidence of D's good character (in the limited sense of him having no previous convictions) against any evidence of bad character admitted under the Criminal Justice Act 2003, s. 101. In this case, D, who was charged with cheating the public revenue, had no previous convictions, but evidence was adduced showing that over a period of several years he had repeatedly been in breach of tax requirements and had failed to account for income or disclose assets. He had on three occasions been investigated by the Inland Revenue and two of these investigations had been referred to the Revenue's (criminal) Enquiry Branch, now known as the SCO. This evidence had a potential bearing both on his credibility and on his disposition to offend in that way. In those circumstances, a straightforward good character direction was clearly out of the question. Having considered Aziz [1996] AC 41, Rix LJ offered the following guidance:

42. . . . Where bad character is admitted under the 2003 Act on the grounds that it is relevant both to propensity and credibility, it would make no sense for the judge to give a standard good character direction, stating its relevance to propensity and credibility in precisely the opposite direction. As for Mr Germain's reliance on Aziz, we would comment as follows. First, this precedes the 2003 Act with its abolition of the common law in relation to bad character and its replacement in terms of its own provisions as to bad character. Although there is no similar abolition of the common law rules as to good character, it is difficult to think that the new law (as to bad character) has no impact for the old law (as to good character). In any event Lord Steyn was not contemplating the case where the bad character evidence is part of the prosecution case. Secondly, the misconduct which was here in question in terms of the appellant's bad character was persistent and serious and closely similar and relevant to the offences for which he was charged: in this respect it was analogous to the situation contemplated by Lord Steyn in Aziz at 53B. Thirdly, in Aziz the misconduct in question (at 46F/G) was trivial compared to the huge tax conspiracy which was the subject-matter of trial.

43. Having said that, we nevertheless consider that the judge should at least have reminded the jury in this context that the appellant was a man without previous convictions (although we recognise that the jury would have been aware of this). We also consider that one way to deal with the difficulties presented in the aftermath of the 2003 Act by a defendant without previous convictions but with evidence of bad character admitted under section 101 is by modifying the bad character direction. In the past, it became recognised as possible to modify a good character direction to take account of the exceptional case where there was evidence before the jury that a defendant of no previous convictions was nevertheless potentially of bad character, or even actually so (as where there was a plea of guilty to a lesser offence but the trial continued on the graver offence charged): see Vye (1993) 97 Cr App R 134 at 139, Teasdale (1994) 99 Cr App R 80 at 82, Durbin [1995] 2 Cr App R at 91/92. In suitable cases there was the discretion to give no good character direction at all (Aziz, Shaw [2002] 1 Cr App R 77). We consider that in the post 2003 Act world, where bad character directions as to propensity have more frequently become necessary, even in the absence of previous convictions, it may be possible similarly to tailor a modified bad character direction, along the following lines. Thus when a judge is directing the jury about the relevance of bad character to propensity or propensities, he could remind them that the defendant had no previous convictions and say that, in the ordinary case, where there was no evidence of bad character, a defendant of no previous convictions would have been entitled to a direction that the jury should consider that that counted in his favour on the questions of both propensity and credibility; as it was, it was for the jury to consider which counted with them more – the absence of previous convictions or the evidence of bad character; and if the former, then they should take that into account in favour of the defendant, and if the latter, then they would be entitled to take that into account against him.

44. A direction such as that would hold the balance, for the jury to decide, between the previous absence of any conviction, which at least would be a given, and the current evidence of previous misconduct, which depending on the circumstances may or may not amount to a criminal offence and may or may not be admitted by the defendant. Of course, in the case of which Lord Steyn spoke, one where any direction on good character would be a charade or spurious, no good character direction need be given at all.

F16 Exceptions to the Rule against Hearsay

F16.20 Hearsay Admissible in the Interests of Justice

Mclean (originally reported as M) [2007] EWCA Crim 219 was considered by the Court of Appeal in Prosecution Appeal (No 2 of 2008) [2008] EWCA Crim 10.

Mclean concerned a statement made by D1 whilst on remand in connection with a serious offence. The statement was not a confession (and thus could not be admissible under the Police and Criminal Evidence Act 1984, s. 76 or s. 76A, or indeed under the common-law rules preserved by the Criminal Justice Act 2003, s. 118(1)). Instead, it placed the blame on D2. A third defendant (D3) sought to rely on this statement by invoking s. 114(1)(d) and D1 supported the application. D2 naturally objected.

The trial judge accepted D2's objection, ruling that such evidence fell beyond the ambit of s. 114(1)(d). This was understandable. The Law Commission, on whose report the hearsay provisions of the CJA were based, had said:

A hearsay admission is still evidence only against the person who made it, and a jury must be warned accordingly. A number of our respondents thought it extremely important that this principle be retained, and we agree. (Law Com 245 at 8.96)

More recently, the Court of Appeal in Williams [2006] EWCA Crim 3300 had criticised a trial judge's summing up on the specific basis that:

He did not warn the jury that what one defendant had said in interview could not be used against another. He did not explain why that was so in the customary fashion, namely because it was hearsay evidence. The co-defendant had not heard what the one defendant had said about him and had not had the opportunity to dispute it. . .

Where there are three defendants, each of whom had said things in interview about his own role and also about the roles of the others, it was, in our view, vital that the judge should make it clear that anything accusatory that one defendant said about another defendant was not evidence against that other defendant.

In Mclean, however, the Court of Appeal held that the CJA had changed the ground rules. Hughes LJ said (at [20] to [21]):

The conventional direction . . . that has historically been given to juries [is] that what defendant A says to the police is evidence only when considering his case and is to be ignored when considering the case of defendants B, C or D. The reason why that has always been the direction given is that what A says to the police is hearsay so far as B, C or D are concerned. Until the passage of the Criminal Justice Act 2003 it was, almost invariably, inadmissible hearsay; hence the direction. The 2003 Act makes hearsay admissible in some circumstances. In the context of this case it makes it admissible if, but only if, the judge concludes that it is in the interests of justice that it should be admitted. It follows without question that if it is admitted there can be no possibility of what we have described as the conventional direction any longer being given. If hearsay evidence is admitted in the interests of justice the jury is by law entitled to consider it, to determine its weight and to make up its mind whether it can or cannot rely upon it. It would be a plain nonsense to suggest that such hearsay evidence could be admissible, yet still the jury should be directed that it was not evidence except in the case of [the maker]. . .

In Prosecution Appeal (No. 2 of 2008) the question was whether the prosecution could adduce evidence of a statement made by the defendant's alleged accomplice, who had pleaded guilty to the murder after previously making a statement (amounting to a confession) in which he also incriminated the defendant. Such a statement cannot be admissible under the PACE 1984, 1984, s. 76 or s. 76A, because it is not the confession of a defendant (see also Finch [2007] 1 WLR 1645, [2007] EWCA Crim 36); but could the CJA 2003, s. 114(1)(d), be relied upon instead? Mclean suggests that the answer must be 'Yes' – but only where the court or judge considers that its admission would be in the interests of justice. Hughes LJ, who delivered the court's judgment in Mclean, also delivered its judgment in Prosecution Appeal (No. 2 of 2008) and took the opportunity both to endorse and to clarify what Mclean decided. He said:

57. . . . In some quarters . . . McLean is being cited, on behalf of the Crown or co-defendants, as authority for the proposition that the inhibition upon the police interviews of one defendant being relied upon against another has simply been 'abrogated'. If that means that it is thought that such material is routinely to be admitted under section 114(1)(d), it both proceeds upon a mis-reading of the case and mis-states the law. McLean is certainly authority for the conclusion which we have independently reached in this case that section 114(1)(d) is capable of application to any out-of-court statement; thus it is, we accept, capable of application to a hearsay statement contained in a police interview [but] . . . the existence of section 114(1)(d) does not make police interviews routinely admissible in the case of persons other than the interviewee, and that the reasons why they are ordinarily not admissible except in the case of the interviewee are likely to continue to mean that in the great majority of cases it will not be in the interests of justice to admit them in the case of any other person.

58. The interests of justice test will require, in a case such as the present, attention to the difference between an admission against interest and an accusation against someone else. That consideration no doubt also comes into play under section 114(2)(e), the reliability of the maker of the statement, and (d), the circumstances in which the statement was made. Absent inducement, mental instability or perhaps an incentive to protect someone else, it can no doubt normally be said that a person is unlikely to confess to a serious crime unless he did it. Precisely the reverse may well be true of an accusation against someone else, whether it is combined with a reliable confession or not. It may be evident that the maker of the accusation has a possible motive to blame someone else when no-one else was in fact involved, or (where plainly someone else was involved) to cast the blame on the wrong person.

60 . . . We would expect that before reaching the conclusion that it is in the interests of justice to admit a hearsay statement, the Judge must very carefully consider the alternatives. The alternatives may well include the bringing of an available, but reluctant, witness to court. It by no means follows in practice that a witness who has declined an invitation to make a statement will in fact refuse to give evidence if brought to court. If he may do so, then consideration will also need to be given to whether justice would better be served by putting him before the jury so that they can see him, with the possibility of applying to cross-examine him upon the previous statement, rather than simply putting in that statement for evaluation in the abstract by the jury.

A distinction can however be drawn between evidence that falls outside the scope of the PACE 1984, s. 76 or s. 76A and evidence that is expressly declared to be inadmissible by those provisions. The CJA 2003, s. 114(1)(d) can make admissible that which the PACE 1984 does not, but cannot make admissible that which remains barred by the express terms of the earlier Act.

APPENDICES

Appendix 1 Criminal Procedure Rules 2005

The Rules were revised and amended by the Criminal Procedure (Amendment No. 3) Rules 2007 (SI 2007 No. 3662). These amendments take effect for the most part on 1 April 2008. A revised version of the Rules, taking all amendments to date into account, is available on this site.

Appendix 2 Codes of Practice under the Police and Criminal Evidence Act 1984

The Police and Criminal Evidence Act 1984 (Codes of Practice Order) 2008 (SI 2008 No. 167) provides for new Codes A to E to take effect from 1 February 2008.

NEW LEGISLATION

Criminal Defence Service (Very High Cost Cases) Regulations 2008 (SI 2008 No. 40)

These Regulations apply to cases where a case becomes classified as a very high cost case. In those circumstances, the Legal Services Commission is no longer bound to fund representation by the defendant's legal representative of that representative is not a member of the Very High Cost Case (Crime) panel. The defendant must, if funding is to continue, choose a representative from that panel.

UK Borders Act 2007 (Commencement No. 1 and Transitional Provisions) Order 2008 (SI 2008 No. 99)

This Order brings into force, on 31 January 2008, the following provisions of the Act.

ss. 1 to 4 (detention at ports);
ss. 5 to 8 (biometric registration: regulations);
s. 10 (biometric registration: objection to penalty) for the purposes of making an order under s. 10(2) and (4);
s. 11 (biometric registration: appeal in respect of penalty) for the purposes of making rules under s. 11(6);
s. 13 for the purposes of issuing a code of practice under s. 13(1) and making an order under s. 13(6) (biometric registration: code of practice regarding penalty);
ss. 14 and 15 (biometric registration: prescribed matters and interpretation);
subject to a transitional provision, s. 16 (conditional leave to enter or remain);
s. 18 (support for asylum-seekers: enforcement);
s. 20 (fees);
ss. 22 and 23 (assaulting an immigration officer: offence and power of arrest);
subject to a transitional provision, s. 26 (disposal of property) for the purposes of making regulations s. 26(5);
ss. 29 to 31 (facilitation and trafficking);
ss. 40 to 43 (supply and wrongful disclosure of information); and
various related repeals.

Police and Criminal Evidence Act 1984 (Codes of Practice Order) 2008 (SI 2008 No. 167)

This Order provides for new Codes A to E to take effect from 1 February 2008.

^ Return to the top

About this book
Price, bibliographic details, and more information on the book