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Blackstone's Criminal Practice 2009

January 2008

January 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 January update primarily covers developments occurring or reported in December 2007.

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• Part B: Offences
• Part D: Procedure
• Part E: Sentencing
• Part F: Evidence
• Appendices
• New Legislation

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PART B OFFENCES

B1 Homicide and Related Offences

B1.46 Constructive Manslaughter: the Unlawful Act

Johnstone [2007] EWCA Crim 3133 illustrates the difficulty that may sometimes arise in proving a causal link between the alleged criminal act and the death of the deceased. In this case, there was no real doubt that the young defendants caused the death of the 67-year-old deceased; who died of a heart attack shortly after they had pelted him with sticks and stones and struck him on the head with at least one stone; but there was (apparently) some doubt as to whether the irregular heart rhythm (arrhythmia) that led to the heart attack was triggered by this manifestly criminal and dangerous assault or whether it had already been triggered by earlier loutish and perhaps criminal (but not obviously dangerous) behaviour that included spitting and verbal abuse. Although the combination of events was likely to have caused the lethal arrhythmia, it had been impossible, on the evidence, for the jury properly to conclude that the earlier insults and spitting had not been the sole cause of the heart attack.

B1.75 Infanticide: Elements

In Gore [2007] EWCA Crim 2789 the Court of Appeal provides important (albeit obiter) guidance as to the breadth of the offence and partial defence of infanticide. Hallett LJ said:

[34] The mens rea for the offence of infanticide is contained, as we see it, explicitly in the first few words of section 1(1), namely the prosecution must prove that the defendant acted or omitted to act wilfully. There is no reference to any intention to kill or cause serious bodily harm. . . . As to the meaning of the phrase "notwithstanding that the circumstances were such that but for this Act the offence would have amounted to murder", to suggest . . . that this means "notwithstanding and provided that" is to strain the English language. We take the word "notwithstanding" to mean what the Oxford English dictionary says that it means when used as a preposition. It means "despite the fact" or "even if". It does not mean "provided that". In an era when a mother who killed her child with the intention of doing so would have faced the death penalty, we take the view this phrase was added for the avoidance of doubt. Further, we note that in subsection (1) Parliament has used the word "would"; it has not used the word "must". "Would" does not mean "must" and there is no reason to give the word "would" an extended and unnatural meaning. Had the draughtsman intended to provide that a woman could only be guilty of infanticide if she intended to kill or seriously harm her child, he would no doubt have said so and Parliament would not have agreed the deletion of the word "intentionally". Finally, . . . the section creates an offence in subsection (1) and it provides a partial defence to murder and a possible alternative verdict to murder in subsection (2). If section 1(1) were intended only to be used where the mental element for murder was proved then section 1(2) would be redundant. The offence created by section 1(1) could always have been left open to the jury as an alternative charge to murder.

[35] Although humanity may not be an acknowledged cannon of statutory construction, the fortunate consequence of our interpretation is that the offence of infanticide covers a wider range of cases . . . A distressed young mother in a similar position to this appellant is not forced to confront what may be the stark truth that, for whatever reason, however disturbed she may have been at the time, she killed her child intending to kill or cause really serious bodily harm. Nor will such a young woman, if she does not accept that she had such an intention, have to face a murder trial. To our mind no useful purpose would be served by restricting the offence of infanticide in such a way. . . . A mother in this position, often a woman in severe distress, is not required to acknowledge that she has murdered her child before she can benefit from a charge of infanticide.

B1.115 Solicitation of Murder: Sentencing Guidelines

Although some recent cases indicate that sentences of around seven years may be appropriate in cases of solicitation to murder (see for example Abu Hamza [2006] EWCA Crim 2918) and that lower sentences (e.g., four years in Saleem [2007] All ER (D) 462 (Oct)) might sometimes be in order, it is now clear that much heavier sentences may be appropriate in the gravest cases.

In A-G's Refs (Nos. 85, 86 and 87 of 2007); Tsouli [2007] EWCA Crim 3300, sentences of up to 20 years were said to be appropriate in a case involving sophisticated and powerful solicitation of a potentially large Islamic internet audience, to commit terrorist murder on a scale proportionate to the size of the audience.

B2 Non-fatal Offences against the Person

B2.54 Wounding or Causing GBH with Intent: Sentencing Guidelines

Where there were multiple victims, this will ordinarily be relevant to sentencing. In A-G's Ref (No 85 of 2007); Bushell [2007] EWCA Crim 3218, a case of causing grievous bodily harm with intent where there was high culpability and a high degree of harm (life-threatening and brain-damaging injuries inflicted with an iron bar), the fact that there were two such victims meant that the appropriate sentencing range was 15 to 16 years' imprisonment, whereas a starting point of 12 years might have been appropriate had there been only one such victim.

B3 Sexual Offences

B3.278 Indecent Photographs of Children

It has been said that the offence of making indecent photographs (including videos etc) of children, contrary to the Protection of Children Act 1978, s. 1(1)(a) should be construed as narrowly as it reasonably can be in order to avoid unwelcome consequences: see Atkins v DPP [2000] EWHC Admin 302, [2001] 1 WLR 1427, per Simon Brown LJ. The decision of the Court of Appeal in Harrison [2007] EWCA Crim 2976 might be thought to go against that principle.

Strictly speaking, Harrison is not a case concerning the s. 1 offence. The appellant was convicted, not of making indecent images, several of which were found on his computer, but only of possessing them, contrary to the Criminal Justice Act 1988, s. 160. (He was charged with 'making' certain other images, also found on the computer, but acquitted.) Nevertheless, the prosecution conceded that they could not prove possession of any of the images, unless they were images that the appellant had himself 'made' by downloading them from the Internet. If he had not made them, he might not have known they existed, and could not therefore be proved to have possessed them.

There were two possible reasons, according to the defence, as to why the appellant might not have known of the images. The first was that they may have been downloaded by his teenage son, when he was at work, but it seems that the jury must have rejected that story. The second was that the images were 'pop-ups', i.e. images that were downloaded to his computer automatically when he opened or attempted to open some other (legal) site or image. He did not deny visiting adult porn sites and viewing adult sexual images, which are not of course illegal, but did not accept that he was knew material appearing by way of automatic "pop ups" would also be stored on his hard drive.

His argument was that a person cannot be said to make an illegal image if, when using his computer to browse the Internet, he intentionally accesses a web site comprised of lawful, albeit pornographic, material but, without further action on his part, the programming associated with the site causes illegal material to 'pop up' or results in access to sites which contain illegal material. The factual aspect of making, so the argument goes, is absent in such a case. It is not the user who makes the resultant images but the creators of the original web page and pop-up link. And in any case, the mental element required for making would be missing.

Dismissing the appeal, the court ruled (per Cranston J):

"[17] We reject the notion that with automatic 'pop up' type activities it is the web site's designer, not the user, who makes the image. It is contrary to authority and to the ordinary meaning of language. Moreover, the jury must have been taken to have decided against the appellant, as the appellant now concedes, about the existence and function of the computer in storing material automatically. In other words the jury must be taken to have decided that the appellant knew that any images he accessed would be copied — 'made' in terms of legislative language — and stored automatically.

[18] It was common ground that, as the appellant admitted he knew, automatic 'pop ups' or redirections to other sites would occur when accessing legal pornographic sites. The issue the jury then had to decide was whether the appellant knew the likelihood that in accessing certain sites, illegal material would in this way be accessed. The appellant complains that the judge failed to make the distinction between the likelihood that 'pop up' type activity would occur on the one hand and the likelihood that, if it did, illegal material would be accessed on the other. He also complains that there was no evidence that it was possible to predict, before accessing any particular site, whether or not 'pop up' type activity would occur and that, further, it would be of illegal images.

[19] There are passages in the Judge's summing up where this distinction was not drawn as clearly as I might have been. But we are in no doubt that, in the context of the summing up as a whole the jury knew what they had to be sure not only about and that the appellant knew about automatic 'pop up' activity when he accessed adult pornographic sites, but that he knew that in accessing certain sites there was a likelihood that these 'pop ups' would be illegal images.

[20] In our view there was also enough evidence for the jury to decide the issue of the likelihood that sites, if accessed, would lead to illegal 'pop up' activity. Images in the possession count can be associated with particular sites. Thus there was an (evidential) basis for the jury to be sure, based on the appellant's previous use of particular sites, that it was likely to contain illegal images."

This might be thought to extend the law well beyond the definition of 'making' adopted in earlier cases such as Smith [2002] EWCA Crim 683; [2003] 1 Cr App R 212 (i.e. 'a deliberate and intentional act, with knowledge that the image made is, or is likely to be an indecent photograph of a child'). Surfing otherwise legal sites may now result in ruinous criminal liability if the surfer's browser happens to open an image that is not the one he intended to open, and is instead an illegal image of a child. It will be enough that the surfer knew of the likelihood that such a thing might happen.

In respect of a charge of possession, the CJA 1988, s. 160(2)(c), provides that no offence is committed if the image was sent to the defendant without any prior request and he did not keep it for an unreasonable time. Deletion or shredding of the image (even if specialist forensic software could subsequently restore it) would ordinarily suffice to bring a defendant within this defence. As Dyson LJ observed in Porter [2006] EWCA Crim 560, [2007] 2 All ER 625:

Parliament intended that persons who inadvertently come into possession of images and get rid of them within a reasonable time are not guilty of the offence of possession.

The appellant in Harrison apparently made no attempt to delete the images. His defence was that he was unaware they had been retained in the first place. But suppose instead that he ventured onto a pornographic website, clicked on a link that he knew involved a risk of dubious and unwanted pop-ups, and was appalled by the illegal pop-up image that then appeared. If he hurriedly deleted the image, he would have brought himself within s. 160(2)(c). Mere surfing cannot be equated with a 'prior request' for such images. But on the reasoning adopted by the Court of Appeal he would have remained guilty of 'making' the image in the first place – an offence in respect of which prompt deletion would be no defence. Can Parliament really have intended that?

B7 Company, Investment and Insolvency Offences

B7.1 Scope of the Companies Acts

The Companies Act 2006 (Commencement No. 5, Transitional Provisions and Savings) Order 2007 (SI 2007 No. 3495) brings further provisions of the Act into force on 1 April, 29 June and 1 October 2008.

B14 Offences against the Administration of Justice

B14.73 Contempt of Court: Magistrates Courts

Where under the Contempt of Court Act 1981, s. 12, a person is found guilty of contempt by wilful misconduct in the face of a magistrates' court, s. 12(5) entitles him to appeal to the Crown Court under the Magistrates' Courts Act 1980, s. 108. This may be an appeal against conviction or sentence. Observations to the contrary in Havant Justices, ex parte Palmer (1985) 149 JP 609 (which suggest that such an appeal lies only against sentence, because s. 12(5) of the 1981 Act merely refers to an 'order' under s. 12 and applies s. 108 of the 1980 Act to that order only as it applies 'in relation to a sentence on conviction or finding of guilty of an offence') were disapproved in Haw v City of Westminster Magistrates' Court [2007] EWHC 2960 (Admin). Referring to Sir John Smith's earlier criticism of Ex parte Palmer at [1985] Crim LR 65, Thomas LJ said:

We agree that there can be no good reason why a person convicted under s. 12 should not have a right of appeal against conviction as well as against sentence.

Such a person may in appropriate cases seek judicial review (as in Tamworth Magistrates' Court, ex parte Walsh [1994] COD 277 and Patley Bridge Justices, ex parte Percy [1994] COD 453) or apply to the magistrates to state a case for the High Court in accordance with the Magistrates' Courts Act 1980, s. 111, but he has no right of appeal under the Administration of Justice Act 1960, s. 13.

See also Lane v Gloucester Magistrates' Court [2006] EWHC 3198 (Admin).

B14.110 Contempt of Court: Appeals

As to appeals from findings of contempt in magistrates' courts, see B14.73 above.

B19 Offences Involving Writing, Speech or Publication

B19.7 Blasphemy and Blasphemous Libel

In R (Green) v City of Westminster Magistrates' Court [2007] EWHC 2785 (Admin), the Queen's Bench Divisional Court held that no prosecution for blasphemous libel could be brought in respect of a theatre production to which the Theatres Act 1968, s. 2(4)(a) applies, or in respect of a broadcast to which the Broadcasting Act 1990, sch. 15, para. 6 applies.

Furthermore, blasphemous libel requires 'contemptuous, scurrilous and/or ludicrous material relating to God, Christ, the Bible or the formularies of the Church of England'. An offending publication must be such as tends to endanger society as a whole, by endangering the peace, depraving public morality, shaking the fabric of society or tending to cause civil strife. No such offence is committed merely because some people of particular sensibility are deeply offended and moved to protest. The offence will be established only if what is done or said is such as to induce a reasonable reaction involving civil strife, damage to the fabric of society or their equivalent.

It is difficult to see how any attack on the Christian religion would be likely to have such an impact in the largely secular and free-thinking society that is modern England and Wales.

Hughes LJ noted that the play in question ('Jerry Springer, the Opera') has been performed regularly in major theatres in London and elsewhere for nearly two years without any sign of it undermining society or occasioning civil strife or unrest; there has been no violence (or even demonstrations). There was a small demonstration outside Broadcasting House when the BBC broadcast it, but that was all.

B20 Offences Relating to Drugs

B20.48 Cultivating Cannabis: Sentencing Guidelines

B20.109 Class C Drug Offences

In Xiong [2007] EWCA Crim 3129, the Court of Appeal set out the following guidance in respect of cases involving the large-scale commercial cultivation and production of cannabis. The court does not purport to lay down formal guidelines, but only guidance as to brackets within which some consistency of sentencing can be achieved. This 'guidance' reflects that fact that despite the reclassification of cannabis as a Class C drug, commercial production or cultivation remains a serious offence carrying substantial penalties. See also Tuckman [2005] EWCA Crim 335 and Kieu Vi To [2006] 2 Cr App R (S) 38. The suggested sentencing brackets are as follows.

For those involved at the lowest level, a starting point of three years' imprisonment, is appropriate, before taking into account any guilty plea and/or personal mitigation (see Kuang Van Nguyen [2007] EWCA Crim 9). Such persons include the 'gardeners' who tend the plants and harvest the cannabis. These will usually have had little or nothing to do with the setting up of the operation. They will often be illegal immigrants, who are paid a subsistence wage or indeed given nothing other than their board and lodging.

For organisers who set up and control individual operations, a starting point of six to seven years is appropriate, depending upon the quality of cannabis involved (see Jupp [2002] Cr App R (S) 8 and Liljerous and Alderson [2004] 2 Cr App (R) (S) 81 at p 486).

For managers, a starting point of between three and seven years is appropriate, depending on the level of their involvement and the value of the cannabis being produced. More severe sentences may be appropriate for those who control a larger number or network of such operations.

B23 Immigration Offences

B23.45 Offences under the Immigration, Asylum and Nationality Act 2006

The Immigration, Asylum and Nationality Act 2006 (Commencement No. 7) (Amendment) Order 2007 (SI 2007 No. 3580) amends the (Commencement No. 7) Order (SI 2007 No. 3138) with the effect of postponing the implementation of the provisions which were originally due to come into force on 31 December 2007 until 1 March 2008.

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PART C ROAD TRAFFIC OFFENCES

C6 Summary Traffic Offences

C6.47 Speeding

A prosecution for speeding may be brought under the Road Traffic Regulation Act 1984, s. 89, even where the speed limit in question was a temporary one imposed under s. 14 of that Act, in respect of which a prosecution for speeding might instead have been brought under s. 16. Section 16 provides:

A person who contravenes, or who uses or permits the use of a vehicle in contravention of, a restriction or prohibition imposed under section 14 of this Act shall be guilty of an offence.

See DPP v Wells [2007] All ER (D) 181 (Dec).

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PART D PROCEDURE

D1 Powers of Investigation

D1.7 Powers to Stop and Search

Even where a police officer has reason to believe that a suspect is about to swallow or otherwise dispose of contraband, he must comply with the terms of the Police and Criminal Evidence Act 1984, s. 2, by stating his name, police station, the object of the proposed search; and his grounds for proposing to make it. See Bristol [2007] EWCA Crim 3214. The Court of Appeal in Bristol suggested that this requirement can be complied with very quickly: e.g. by saying, "Mansson; Charing Cross; Drugs search. Spit it out". In the absence of such a statement, a defendant who struggles, swallows or fights when searched cannot be guilty of offences such as wilful obstruction, resistance or assault, because the officer will be acting unlawfully.

See also Osman v DPP (1999) 163 JP 725. As to the admissibility of evidence found by means of an unlawful search, see Blackstone's Criminal Practice 2008, F2.1.

D4 Criminal Procedure Rules

D4.10 Case Management: the Role of the Parties

The Criminal Procedure (Amendment No. 3) Rules 2007 (SI 2007 No. 3662) include changes to the Criminal Procedure Rules 2005 affecting Part 3 (case management) which have effect from 7 April 2008. A new r. 3.5(6) sets out the sanctions a court may impose for failure to comply with a procedure rule or a procedural direction; a new r. 3.8(2) requires the Crown Court to conduct a plea and case management hearing unless that is unnecessary; and a new r. 3.10, in substitution for the existing rule, requires the court to establish the issues the parties intend to explore at the trial or at the appeal. New explanatory notes are also added.

D8 Assets Recovery

D8.27 Restraint Orders

In P (Ministry of Justice and Home Office intervening) [2007] EWCA Crim 3128, the Court rejected two challenges to the Proceeds of Crime Act 2002, s. 41, based on alleged incompatibility with the ECHR, Article 6 and the First Protocol, Article 1. Each case involved a refusal by the courts to allow the variation of a restraint order so as to permit the release of funds to pay for legal representation (see s. 41(4)).

The court reasoned that the restraint orders related to funds suspected of being the proceeds of crime. Parliament was entitled to take the view that such funds should not be used to pay for lawyers on behalf of the defendants. Public funding was however available. In some atypical cases, the level of public funding provided might not suffice to attract counsel of the requisite seniority. That issue might have to be addressed when the proceedings were heard, in the light of the defendant's rights under Article 6; but s. 41 was not incompatible with the Convention.

D12 Arraignment and Pleas

D12.34 Retrial Provisions of the CJA 2003

Dunlop [2006] EWCA Crim 1354 was distinguished in Meill [2007] EWCA Crim 3130, in which the respondent had been acquitted of murder, despite having confessed to it; but later made further confessions, and pleaded guilty to perjury by denying his guilt at the murder trial. The prosecution contended that there was thus new and compelling evidence to justify a retrial on the charge of murder; but the Court of Appeal disagreed. The Criminal Justice Act 2003, s. 78, required the court to form its own view as to whether the respondent's plea of guilty to perjury was, in fact, compelling, reliable and highly probative evidence that he was the murderer. The court's view on this was that the respondent's latest admissions were unreliable and contrary to much of the known evidence. The application to retry him was accordingly refused.

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), which brought into force, on 7 December 2007, certain provisions of the Criminal Justice Act 2003, has been corrected by the issue of a correction slip. The correction corrects the title of the Order so that it is known as the the Criminal Justice Act 2003 (Commencement No. 19 and Transitional Provisions) Order 2007.

D30 Public Funding and Costs

D30.5 Nature of Representation

The Criminal Defence Service (General) (No. 2) (Amendment No. 3) Regulations 2007 (SI 2007 No. 3350) amend the principal Order of 2001 (SI 2001 No. 1437) in relation to 'very high cost cases'. In particular, regs. 13(2) and 23(1) are substituted. The effect is that, in a case which is classified as a very high cost case, the right to select a representative is limited to the selection of a representative who is a member of the Very High Cost Case (Crime) Panel.

D30.12 Proper Approach to Making a Defendant's Costs Order

The Practice Direction on Costs in Criminal Proceedings [2004] 2 All ER 1070 was amended with effect from 3 December 2007 by Amendment to the Practice Direction on Costs in Criminal Proceedings (Value Added Tax on Disbursements), which sets out (in a Schedule) a revised version of Pt XIV.6 and deals, inter alia, with what qualifies as disbursements, and which payments, made by legal representatives to third parties, must include VAT.

The new version of Pt XIV.6 reads:

1. XIV.6.1: Legal representatives often make payments to third parties for the supply of goods or services where no VAT was chargeable on the supply by the third party: for example the cost of meals taken and travel costs. The question whether legal representatives should include VAT in respect of these payments when invoicing their clients, or in claims for costs between litigants should be decided in accordance with this Direction and with the criteria set out in the VAT Guide (Notice 700) published by HM Revenue and Customs.
2. XIV.6.2: Payment to third parties which are normally treated as part of the legal representative's overheads (for example postage costs and telephone costs) will not be treated as disbursements. The third party supply should be included as part of the costs of the legal representative's legal services and VAT must be added to the total bill charged to the client.
3. XIV.6.3: With effect from 3 January 1978 VAT is added to Sheriff's fees (see the Sheriff's Fees (Amendment No. 2) Order 1977, SI 1977/2111).
4. XIV.6.4: Some payments, although correctly described as disbursements for some purposes, are not classified as disbursements for VAT purposes. Items not classified as disbursements for VAT purposes must be shown as part of the services provided by the legal representative and therefore, VAT must be added in respect of them whether or not VAT was chargeable on the supply by the third party.
5. XIV.6.5: Guidance as to the circumstances in which disbursements may or may not be classified as disbursements for VAT purposes is given in the VAT Guide (Notice 700 para 25.1). One of the key issues is whether the third party supply: (i) was made to the legal representative (and therefore subsumed in the onward supply of legal services); or (ii) was made direct to the receiving party (the third party having no right to demand payment from the legal representative, who makes the payment only as agent for the receiving party).
6. XIV.6.6: Examples of payments under (i) are: travelling expenses such as an airline ticket, and subsistence expenses, such as the cost of meals, where the person travelling and receiving the meals is the legal representative. The supply is by the airline and restaurant and are supplies to the legal representative not to the client.
7. XIV.0.7: Payments under (ii) are classified as disbursements for VAT purposes and, therefore, the legal representative need not add VAT in respect of them. Simple examples are: payments by a legal representative of court fees and payments of fees to an expert witness.

D31 Extradition

D31.2 Part 1 of the Extradition Act 2003

The provisions of the Extradition Act 2003, part 1, and of the 2002 Framework Decision of the Council of the European Union (2002/584/JHA) were considered by the Queen's Bench Divisional Court in Jaso v Central Criminal Court No 2 Madrid [2007] EWHC 2983 (Admin).

The Madrid court issued European Arrest Warrants (EAWs) in respect of three alleged ETA terrorists, who sought to challenge the warrants both by raising technical points as to their form and content and by seeking to impeach the processes of the Spanish authorities (e.g., by alleging abuse of process, torture, etc).

The court considered and dismissed each of the grounds of appeal. It ruled in so doing that, although the Extradition Act 2003, s. 2(4)(b), read in conformity with the Framework Decision, Article 8.1(c), requires EAWs to contain evidence of any enforceable judgment, etc., on which they purport to be based, it does not require such warrants to make any reference to other warrants, whether domestic warrants or EAWs which have previously been issued in respect of a requested person. In rejecting the challenges to Spanish judicial procedures, the court concluded:

The remaining grounds seek in different ways to impeach the processes of the Spanish judicial authorities. What is common to all of these grounds is a lack of trust in these authorities. If our courts were to accede to such arguments, they would be defeating the assumption which underpins the Framework Decision that member states should trust the integrity and fairness of each other's judicial institutions. This is a course that we should not take.

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PART E SENTENCING

E5 Custodial Sentences for Dangerous Offenders

E5.1 Application of the Scheme

In Terrell [2007] EWCA Crim 3079, the Court of Appeal held that the statutory scheme for sentencing 'dangerous offenders' is not applicable to offences such as the downloading of child pornography, in which, even if there is a grave risk of re-offending, any possible harm which might be done to children was too remote to satisfy the requirement that it be the defendant's re-offending which caused the serious harm. At worst there might be some indirect and small contribution to a harm which might or might not occur, depending on whether further photographs etc. were taken in part as a result of the defendant's contribution to the market, or depending on whether a child found out about the uses to which they were put as a result. No significant risk of serious harm of the requisite gravity, occasioned by a repetition of the offending in the instant case by the defendant, could reasonably be said to exist.

Giving the judgment of the court, quashing the imposition of a sentence of imprisonment for public protection in such a case, Ouseley J said:

We do not underestimate the unpleasantness of this offence, nor the problems created by the participation of many individuals in the market for such images. The question for us however is whether the quite severe provisions of this part of the CJA 2003 are apt here; they are not. This is not a case in which the re-offending at risk involves any particular children, or a progression in terms of contact or gravity of image, or of the offender widening the network. Such circumstances could give rise to the application of these provisions.

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PART F EVIDENCE

F3 Burden and Standard of Proof

F3.1 Legal and Evidential Burdens

In a judgment concerning a defendant's burden of proof under the Misuse of Drugs Act 1971, s. 28, the Court of Appeal in Malinina (or Malinna) [2007] EWCA Crim 3228 purports to follow Lambert [2002] 2 AC 545, [2001] UKHL 37, but in the process makes some serious errors, both as to the distinction between legal and evidential burdens of proof, and as to the role of the jury in respect of those burdens.

The trial judge in this case appears to have vacillated between pre-Lambert and post-Lambert interpretations of the burden under s. 28. At one point he said,

[The defendant] says . . . that she thought they were steroids. If you find that she was in the possession of these drugs and the drugs contained heroin, the defendant on her evidence must prove, to the standard so it is more likely or more probable than not, that she was a bailee, or if you like an agent who had no right to open the package and no reason to suspect that the contents were illicit or drugs, or that she had no knowledge of or had made a genuine mistake as to the nature of the contents, and had received the package innocently and had no opportunity to acquaint herself with its actual contents.

This was a broadly correct statement of the legal burden of proof as it was understood before Lambert. At the end of his summing up, however, he partially corrected himself in these terms:

At all times, the Crown must prove her guilt. It is not for Miss Malinina to prove her innocence, and she having raised her apparent lack of knowledge, then the Crown will have to prove it from evidence that has been deployed in this case against her.

No doubt this was a case of too little too late, and the jury must have been left confused, but the greater confusion was yet to come. According to the Court of Appeal "the difference between the evidential and legal standard of proof is one that juries find elusive if not baffling", but:

. . . if a judge is not satisfied that the evidential burden has been discharged, he would have to leave that matter to the jury with a careful direction as to the difference between the legal and evidential burden of proof, as well as the differing standard of proof that has to be met in either case.

With respect, if a defendant bears an evidential burden, which the trial judge does not consider to have been discharged (because he has heard no evidence that is capable of supporting the defence in question) he should not leave that particular defence to the jury at all. If however he is satisfied on that score, he still has no need to explain the evidential burden to the jury. It has already been discharged to his satisfaction, so the jury must now concentrate on their proper task, which is to determine whether the legal burden is satisfied, by whichever party it is who has to satisfy them. In the case of a s. 28 defence, that now means the prosecution.

The court then compounds its confusion in this passage (at [11]):

If a judge decides to leave to a jury the question whether a defendant has discharged the evidential burden of raising sufficient persuasive evidence that she did not know or suspect that the substance of which she had possession was a controlled drug, as well as the question of whether the Crown has discharged the legal burden of proving that the defendant did in fact know or had reason to suspect that the substance was a controlled drug, a much more careful direction is needed than that supplied by the judge. At a minimum, such direction must explain the difference between an evidential burden and a legal burden of proof in terms that a jury can understand. It must then also explain that the evidential burden can be discharged on a balance of probabilities, but the legal burden on the Crown has to be discharged to a criminal burden of making the jury sure. Without some such careful explanation, a direction that the burden on the defendant 'does not detract from the fact that the Crown must prove her guilt' is, with respect to [the trial judge], not readily understandable.

This again is wrong. Burdens that have to be discharged to the satisfaction of a jury, whether on a balance of probabilities or otherwise, are by definition legal burdens. It is difficult to imagine the confusion into which a jury would be plunged if directed that only once satisfied of a defence on a balance of probabilities must they then go on to decide whether they are also 'sure' it has been disproved.

The correct approach to s 28 is that indicated by Lord Clyde in Lambert (at [158]):

When the matter of the accused's knowledge (including in that word for convenience the matters of suspicion and reason to suspect which are detailed in section 28) does arise, such burden as there is on the defence is discharged by the defence expressly raising knowledge as an issue. . . . If the jury are satisfied on the matter of possession but are left with a reasonable doubt on the matter of his knowledge or suspicion of the existence of a fact which the prosecution has to prove, such as, for example, the existence of the controlled drug, then they should acquit. If the jury are satisfied beyond reasonable doubt that the accused possessed the substance or product in question but are not satisfied beyond reasonable doubt that he knew that it was a controlled drug (or suspected or had reason to suspect that it was) then again they should acquit him. They can only convict if they are satisfied beyond reasonable doubt that the prosecution has proved possession of the controlled drug and, if the issue is raised, that the lines of defence set out in section 28 are without foundation.

Some have argued that it is wrong (and potentially confusing) to refer to an evidential burden as a burden of proof at all, because it is nothing more than a burden of adducing evidence (see for example Jayasena v R [1970] AC 618, per Lord Devlin at 624). As Malinina demonstrates, they do have a point.

F17 Confessions

F17.65 Mixed Statements

The Garrod test (named after Garrod [1997] Crim LR 445) was considered by the Court of Appeal in Papworth [2007] EWCA Crim 3031, in which an issue arose as to what constituted a mixed statement, in relation to which the rule of common-law admissibility was preserved by the Criminal Justice Act 2003, s. 118(1) and (5).

In Garrod, Evans LJ noted that it is almost impossible to conceive of any series of answers to police questions (other than a bare denial) which cannot be regarded as containing some admissions of relevant fact as well as a statement of innocence and denial of guilt. The question is how to identify the kind of interview which contains enough in the nature of admissions to justify calling it a 'mixed' statement (in which self-serving passages are admissible) rather than an 'exculpatory' statement (which would not ordinarily be admissible at all, even now under the CJA 2003).

Agreeing with the approach taken in Garrod, Hooper LJ suggested in Papworth at [14] that:

When applying the Garrod test to interviews or statements, judges should bear in mind that the rule that the exculpatory parts of a mixed statement are evidence of the facts contained therein, is based on considerations of fairness to the defendant and simplicity for the jury. To the extent to which, at the close of all the evidence, the prosecution place significant reliance on the incriminating parts of an interview, the more likely it is that the jury should be told that the parts which explain or excuse those incriminating parts are also evidence in the case.

The admission in interview of an ingredient of the offence will often constitute a significant admission for the purposes of the Garrod test, but not necessarily. The fact that a defendant on trial for murder accepted in interview that the victim was dead is not likely to be a significant admission. Likewise, in the absence of an admission of an ingredient of the offence, it will be more difficult to conclude that the admissions which were made convert the statement into a mixed statement.

F19 Inferences from Silence and the Non-production of Evidence

F19.4 Failure to Reveal Facts Afterwards Relied upon in Court

The inferences that may be drawn against a defendant under the Criminal Justice and Public Order Act 1994, s. 34, need not necessarily arise out of 'no comment' interviews. The terms of s. 34 may be satisfied even where D has answered every question put to him, if at trial he raises some other fact in his defence that he did not mention, but could reasonably have been expected to mention, when interviewed. If, as is likely, this give rise to some inconsistency in his story, he may also, if he testifies, be liable to cross-examination as to that inconsistency. If some of the facts originally asserted at interview have now been revealed to be lies, there may be need for a Lucas direction in accordance with JSB Specimen direction No 27. There is no incompatibility or conflict here: a Lucas direction and a s. 34 direction may both be appropriate: see O [2000] Crim LR 617.

As a general rule, judges are required to adhere closely to the recommended JSB specimen direction on the drawing of inferences under s. 34. As Buxton LJ explained in Joseph [2004] EWCA Crim 1616 at [8]:

Normally this Court will approach [specimen] directions, very valuable though they are, in a spirit of flexibility, because they are indeed intended to be specimens and not straitjackets for a trial judge. But the section 34 direction has to be treated with more care and more literally than many of the other directions because it has been drawn up specifically to accommodate section 34 to this country's obligations in international law and under the Human Rights Act 1998 in regard to the European Convention on Human Rights.

In Abdalla [2007] EWCA Crim 2495, however, the Court of Appeal recognised that a case which does not involve a silent or 'no comment' interview is not the paradigm case for which s. 34 was enacted.

Abdalla was a case in which the defendant did offer an account when interviewed, but failed to mention the defence eventually put forward at his trial. Having considered a number of authorities, including Brizzalari [2004] EWCA Crim 310 (in which the Court of Appeal "counselled against the further complicating of trials and summings up by invoking this statute unless the merits of the individual case require that that should be done"), the court held that, "Judges are left with a discretion in circumstances such as these". In this case the judge had acted reasonably and properly in choosing not to give a full s. 34 direction, which would in all probability not have assisted the defendant.

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APPENDICES

Appendix 7 The Consolidated Practice Direction

The Consolidated Practice Direction is amended, as of 3 December 2007, by Amendment No 17 (Arraignment in Two Stage Trials).

This amends the Consolidated Criminal Practice Direction by substituting (in Sch 1) a new version of Pt IV.34 SETTLING THE INDICTMENT. In particular, new text is inserted under the heading "Multiple offending: trial by jury and then by judge alone". It provides for the signing of the indictment in respect of which an application is to be made under the Domestic Violence, Crime and Victims Act 2004, s. 17, for a two-stage trial and arraignment.

The new practice direction is also added at the end of the list of included practice directions, in Annex A of the Consolidated Practice Direction.

The full text is available from HMCS at www.hmcourts-service.gov.uk/cms/pds.htm.

The Consolidated Practice Direction was also amended, and earlier Practice Directions governing court dress are revoked, as of 2 January 2008, by Practice Direction (Court Dress) (No 4).

The full text of this practice direction reads as follows:

Following consultation carried out by the Department for Constitutional Affairs and consultation with the Heads of Division the Lord chief Justice has concluded that it is no longer appropriate for solicitors and other advocates authorised under the Courts and Legal Services Act 1990 to be precluded from wearing wigs when appearing in court. The Lord Chief Justice has therefore concluded that they be given the option to wear wigs in circumstances where they would be worn by members of the bar.

It is therefore ordered as follows:

(1) With effect from 02 January 2008 this Practice Direction applies throughout the Supreme Court of England and Wales, including the Crown Court, in county courts and in magistrates' courts.

(2) Practice Direction (Court Dress) [1994] 1 WLR 1056 of 19 July 1994, Practice Direction (Court Dress) (No 2) [1995] 1 WLR 648 of 11 April 1995 and Practice Direction (Court Dress) (No 3) [1998] 1 WLR 1764, [1998] All ER (D) 624 of 25 November 1998 are hereby revoked.

(3) In magistrates' courts, advocates appear without robes or wigs. Dress requirements for advocates appearing in the Supreme Court and in the county courts are as follows: Queen's Counsel wears a short wig and a silk (or stuff) gown over a court coat. Junior Counsel wear a short wig and stuff gown with bands. Solicitors and other advocates authorised under the Courts and Legal Services Act 1990 wear a black solicitor's gown with bands; they may wear short wigs in circumstances where they would be worn by Queen's or Junior Counsel.

(4) The text of paragraph 1.1.1 of Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2870 of 08 July 2002 (as amended) is varied so as to read as follows: In magistrates' courts, advocates appear without robes or wigs. In all other courts, Queen's Counsel wear a short wig and a silk (or stuff) gown over a court coat. Junior Counsel wear a short wig and stuff gown with bands. Solicitors and other advocates authorised under the Courts and Legal Services Act 1990 wear a black solicitor's gown with bands; they may wear short wigs in circumstances where they would be worn by Queen's or Junior Counsel.

(5) Annex A of Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2870 of 08 July 2002 (as amended) is amended so as to add Practice Direction (Court Dress) (No 4) at the end of the list of included Practice Directions. The references to Practice Direction (Court Dress) [1994] 1 WLR 1056, Practice Direction (Court Dress) (No 2) [1995] 1 WLR 648 and Practice Direction (Court Dress) (No 3) [1998] 1 WLR 1764, [1998] All ER (D) 624 therein are deleted.

(6) This Direction is made by the Lord Chief Justice in accordance with the procedure laid down in Part 1 of Schedule 2 of the Constitutional Reform Act 2005.

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NEW LEGISLATION

Companies Act 2006 (Commencement No. 5, Transitional Provisions and Savings) Order 2007 (SI 2007 No. 3495)

This Order brings into force inter alia the following provisions of the Act.

1. on 1 April 2008, ss. 44 (execution of documents), 121 and 128 (register of members: removal of entries and time limit for claims), 270 to 274 and 280 (company secretaries), 380 to 416, 418 to 462 and 464 to 474 (accounts and reports), 475 to 484 and 489 to 539 (audit), 544 (transferability of shares), 738 to 754 (debentures), 755 to 767 (private and public companies), 768 to 790 (certification and transfer of securities), 811(4), 812 and 814 (exercise of right to inspect register of interests disclosed), 829 to 853 (distributions), 895 to 901 (arrangements and reconstructions), 902 to 941 (mergers and divisions of public companies), 1126 (consents required for certain prosecutions), 1161 and 1162 (and sch. 7) (meaning of "undertaking" and related expressions), 1164 (meaning of "banking company" and "banking group"), 1165 (meaning of "insurance company" and related expressions), 1169 (dormant companies), 1172 (references to requirements of this Act), 1173 (minor definitions: general), insofar as it relates to the definitions of "credit institution" and "working day", 1209 to 1241 and 1245 to 1264 (and schs. 10, 11, 13 and 14) (statutory auditors) and 1282 (payment of expenses of winding up);
2. on 29 June 2008, ss. 1242 to 1244 and sch. 12 (duties of third country auditors: information to be supplied by third country auditors);
3. on 1 October 2008, ss. 69 to 74 (objections to company names), 82 to 85 (trading disclosures), 155 to 159 (appointment of directors), 175 to 177 (general duties of directors), 182 to 187 (duty of directors to declare interest in existing transaction or arrangement), 1157 (power of court to grant relief in certain cases) and 1277 to 1280 (information as to exercise of voting rights by institutional investors);
4. on 1 October 2008, s. 1295 and sch. 16 so far as relating to the repeal of ss. 151 to 153 and 155 to 158 of the 1985 Act and Articles 161 to 163 and 165 to 168 of the 1986 Order (financial assistance for acquisition of shares) as they apply to the giving of financial assistance by a private company for the purposes of the acquisition of shares in itself or another private company.

The Order also includes transitional provisions.

Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2007 (SI 2007 No. 3510)

This Order amends the principal Order of 2001 (SI 2001 No. 544) with effect for certain purposes on 30 June 2008 and for remaining purposes on 1 January 2009.

Criminal Defence Service (General) (No. 2) (Amendment No. 3) Regulations 2007 (SI 2007 No. 3550)

This Order amends the principal Order of 2001 (SI 2001 No. 1437) in relation to 'very high cost cases'.

Criminal Defence Service (Funding) (Amendment) Order 2007 (SI 2007 No. 3552)

This Order amends the principal Order (SI 2007 No. 1174), mainly in relation to 'very high cost cases' and graduated fees.

Immigration, Asylum and Nationality Act 2006 (Commencement No. 7) (Amendment) Order 2007 (SI 2007 No. 3580)

This Order amends the (Commencement No. 7) Order (SI 2007 No. 3138) with the effect of postponing the implementation of the provisions which were originally due to come into force on 31 December 2007 until 1 March 2008.

Criminal Procedure (Amendment No. 3) Rules 2007 (SI 2007 No. 3662)

These Rules make the following changes to the Criminal Procedure Rules 2005.

1. In Part 3 (case management) new rules are added: a new r. 3.5(6) sets out the sanctions a court may impose for failure to comply with a procedure rule or a procedural direction; a new r. 3.8(2) requires the Crown Court to conduct a plea and case management hearing unless that is unnecessary; a new r. 3.10, in substitution for the existing rule, requires the court to establish the issues the parties intend to explore at the trial or at the appeal; and new explanatory notes are also added.
2. A new Part 50 (civil behaviour orders after verdict or finding) is substituted for the existing Part 50 (supplementary orders made on conviction); it prescribes the procedure for applying in criminal cases for an anti-social behaviour order or other civil behaviour order.
3. Parts 57 to 62 (Proceeds of Crime Act 2002—rules for various proceedings) are amended to take account of the provisions of the Serious Crime Act 2007 that abolish the Assets Recovery Agency and that amend the provisions of the Proceeds of Crime Act 2002.
4. Part 65 (Appeal to the Court of Appeal: general rules) is amended to take account of the new rules in Part 74.
5. Part 68 (appeal to the Court of Appeal about conviction or sentence) is amended to take account of the provisions of the Serious Crime Act 2007 that confer rights of appeal in respect of a serious crime prevention order.
6. Part 71 (appeal to the Court of Appeal under the Proceeds of Crime Act 2002—general rules) is amended to take account of the changes to Part 65.
7. A new Part 74 (appeal or reference to the House of Lords) is substituted for the existing Part 74; it prescribes the procedure for applying to the Court of Appeal for permission to appeal, or to refer a case, to the House of Lords.
8. New rules in Part 2 (understanding and applying the Rules) explain when the new rules in Parts 50 and 74 will apply and make transitional provisions about other amendments.

The changes to Parts 57 to 62 come into force on 1 April 2008 and the other changes come into force on 7 April 2008.

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