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Blackstone's Criminal Practice 2009

Updates

July 2008

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Blackstone's Criminal Practice 2009

July 2008

July 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 July update primarily covers developments occurring or reported in June 2008.

Part A: General Principles of Criminal Law
Part B: Offences
Part D: Procedure
Part E: Sentencing
Part F: Evidence
New Legislation

Part A General Principles of Criminal Law

A3 General Defences

A3.36 Self-defence: The Degree of Force Permitted

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586) brings s. 76 of that Act into force on 14 July. Section 76 aims to clarify the law on the use of force in self-defence or the prevention of crime.

A5 Parties to Offences

A5.1 Liability of Principals and Accessories Generally

Smith [2008] EWCA Crim 1342, in which the Court of Appeal upheld murder convictions imposed on six members of a notorious Birmingham gang after one of their number shot and killed a doorman who had prevented the gang from forcing their way into a nightclub, involves the application of well established principles of joint enterprise, but the court's conclusion is worth noting. Moses LJ said:

This case provides a salutary example of how those who choose to join an armed gang cannot escape convictions for murder by avoiding identification as the men who fired or as those who assisted at the moment the guns were fired. They share criminal responsibility for murder because they chose to form part of a gang prepared to meet confrontation with loaded guns.

A6 Inchoate Offences

A6.16 Conspiracy

The Court of Appeal's ruling in Hollinshead [1985] 1 All ER 850 was neither confirmed nor rejected by the House of Lords, who decided the case on different grounds, but it has now been followed in Kenning [2008] EWCA Crim 1534, where Lord Phillips CJ said:

We endorse the court's conclusion [in Hollinshead] that an agreement to aid and abet an offence is not in law capable of constituting a criminal conspiracy under section 1(1) of the 1977 Act.

A6.33 Attempt: Sentencing

In Knight [2008] EWCA Crim 1444, the Court of Appeal considered the approach to sentencing that should be adopted in cases where D attempted to murder another and took steps which would have resulted in murder but for the fortuitous occurrence of circumstances that caused the victim to survive. In Knight itself, D (who was of previous good character) had attempted to poison her husband with anti-freeze in order to profit financially from his death. He survived, but with terrible injuries. The trial judge noted the Criminal Justice Act 2003, sch. 21 (although the crime predated commencement of those provisions) and sentenced her to 30 years' imprisonment. Schedule 21 would indicate a life sentence with a 30-year starting point for murders in such circumstances, so the 30-year term imposed (allowing for remission) was significantly less severe than for an actual murder.

This sentence was upheld on appeal. It was not a case in which D relented on seeing the effect of poison and took the victim to hospital to save his life. She had persisted in her attempt to poison her husband and had very nearly succeeded. Accordingly, the judge had been right to take a starting point of 30 years imprisonment.

A7 Human Rights

A7.79 Anonymous Witnesses

See Davies [2008] UKHL 36 and the Criminal Evidence (Witness Anonymity) Act 2008 (noted below at D14.118).

Part B Offences

B1 Homicide and Related Offences

B1.19 Diminished Responsibility: Relevance of Intoxication

Tandy [1989] 1 All ER 267 was 'reconsidered' and Byrne [1960] 3 All ER 1, Fenton 61 Cr App R 261, Gittens [1984] 3 All ER 252, Atkinson [1985] Crim LR 314, Egan 1992] 4 All ER 470, Inseal [1992] Crim LR 35 and Dietschmann [2003] 1 All ER 897 (both the Court of Appeal and the House of Lords judgments) were considered by the Court of Appeal in Wood [2008] EWCA Crim 1305.

The appellant was a 'dependent chronic alcoholic' who spent most of his waking hours drinking. The deceased, V, a male homosexual, invited the appellant to his flat. Whilst drunk, the appellant killed V at that flat in a frenzied attack with a meat cleaver and a hammer, allegedly because V had attempted to have oral sex with him. His defence was diminished responsibility. As to this defence, Mitting J directed the jury first that:

...If you are satisfied that it was more likely than not, by reason of alcohol dependency syndrome and its effect on this defendant's brain, he was suffering from an abnormality of mind and that in consequence his mental responsibility for killing [V] was substantially reduced, your verdict would be ...guilty of manslaughter...

but in the 'second limb' of his direction he followed Tandy saying:

Where a man becomes so drunk that he suffers, temporarily, from an abnormality of mind, he may also be acquitted of murder but convicted of manslaughter by reason of diminished responsibility..., but that verdict would only be open to you if you found it more likely than not that his consumption of alcohol was truly involuntary. A man's act is involuntary if, and only if, he could not have acted otherwise. Giving in to a craving is not an involuntary act, even if it is very difficult to do otherwise. An alcoholic not suffering from severe withdrawal symptoms, who tops up his overnight level or who later chooses to accept a drink after he's reached his normal quota, is not drinking involuntarily.

The Court of Appeal allowed the appellant's appeal against his subsequent conviction for murder. Sir Igor Judge P explained:

In our judgment Dietschmann requires a re-assessment of the way in which Tandy is applied in the context of alcohol dependency syndrome where observable brain damage has not occurred. The sharp effect of the distinction drawn in Tandy between cases where brain damage has occurred as a result of alcohol dependency syndrome and those where it has not, is no longer appropriate. Naturally, where brain damage has occurred the jury may be more likely to conclude that the defendant suffers from an abnormality of mind induced by disease or illness, but whether it has occurred or not, logically consistent with Dietschmann, the same question (i.e. whether it has been established that the defendant's syndrome is of such an extent and nature that it constitutes an abnormality of mind induced by disease or illness) arises for decision. That is for the jury. If the syndrome does not constitute such an abnormality of mind, diminished responsibility based on the consumption of alcohol will fail. If, on the other hand, it does, the jury must then be directed to address the question whether the defendant's mental responsibility for his actions at the time of the killing was substantially impaired as a result of the syndrome. In deciding that question the jury should focus exclusively on the effect of alcohol consumed by the defendant as a direct result of his illness or disease and ignore the effect of any alcohol consumed voluntarily. Assuming that the jury has decided that the syndrome constitutes an abnormality of mind induced by disease or illness, its possible impact and significance in the individual case must be addressed. The resolution of this issue embraces questions such as whether the defendant's craving for alcohol was or was not irresistible, and whether his consumption of alcohol in the period leading up to the killing was voluntary (and if so, to what extent) or was not voluntary, and leads to the ultimate decision, which is whether the defendant's mental responsibility for his actions when killing the deceased was substantially impaired as a result of the alcohol consumed under the baneful influence of the syndrome. The problem with Mitting J's second limb direction is that whether the appellant was suffering from alcohol induced brain damage or not, the experts agreed that the alcohol was consumed by a man suffering from alcohol dependency syndrome. When he directed the jury that 'giving in to a craving is not an involuntary act, even if it is very difficult to do otherwise', he was implying that there was no such thing as an irresistible craving and the observation might well have been regarded as a direction to conclude that any consumption of alcohol by the appellant as a result of a craving did not or could not give rise to the defence. When Mitting J added that a defendant 'later choosing to accept a drink after he has reached his normal quota, is not drinking involuntarily', he was in effect directing the jury to accept that such a choice was voluntary even when made by an alcoholic. Taken together, these observations implied that unless every drink consumed that day by the appellant was involuntary, his alcohol dependency syndrome was to be disregarded. In our judgment they are inconsistent with the analysis of the relevant principles consequent on the decision of the House of Lords in Dietschmann as we have endeavoured to explain them.

B1.141 Involuntary Manslaughter: Sentencing Guidelines: Fights

In Silliker [2008] EWCA Crim 1458, D's partner became involved in a drunken altercation with V in a public house. After the parties had been thrown out by security staff, the altercation flared up again. D became involved and punched V to the ground, before kicking him in the head. V died. A sentence of four years' imprisonment on a guilty plea was described as 'far too long' and reduced to two years, but he court added that it was important for people to realise that if they went out and got drunk, and their behaviour, whilst unintended and impulsive, led to the death of an individual, the courts would go substantially above the starting point for 'one-punch manslaughter' of 12 months' imprisonment as set out in the authorities.

B3 Sexual Offences

B3.38 Rape of a Child Under 13

In G [2008] UKHL 37 the House of Lords were asked to consider human rights issues that arose from the conviction of a 15-year-old boy for the rape of a child of 12 in circumstances where there was no evidence to disprove his assertion (on a plea of guilty) that the girl in question had willingly 'consented' and that he had reasonably believed her to be 15. The first issue was whether the imposition of strict liability as to the complainant's age infringed the ECHR, Article 6(1) and/or 6(2). Not surprisingly, their lordships unanimously held that it did not. The implications of a different answer to that question would have been profound.

The second issue was whether, in the circumstances, a prosecution and conviction for child rape, rather than for a lesser offence under the Sexual Offences Act 2003, s. 13, was a disproportionate interference with the appellant's rights under Article 8. Their lordships were divided on this. Lords Hope and Carswell (dissenting) held that Article 8 was indeed infringed. But Lord Hoffman was contemptuous of the argument that Article 8 was even engaged. He said:

If the prosecution has been unduly heavy handed, that may be unfair and unjust, but not an infringement of human rights. It is a matter for the ordinary system of criminal justice. It would be remarkable if article 8 gave Strasbourg jurisdiction over sentencing for all offences which happen to have been committed at home. This case is another example of the regrettable tendency to try to convert the whole system of justice into questions of human rights.

Baroness Hale and Lord Mance did not go that far, but agreed with Lord Hoffman that there was no breach of Article 8 in this case. As Baroness Hale explained, G's age was obviously relevant to his relative blameworthiness but this was fully reflected in the conditional discharge which the Court of Appeal substituted for the detention and training order originally imposed.

B3.88 Meeting a Child following Sexual Grooming

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 ( SI 2008 No. 1586) brings sch. 15, para. 1 of that Act into force on 14 July. This provision substitutes the Sexual Offences Act 2003, s. 15(1)(a) and (b) so as to provide that an offence will be committed by an adult who has arranged a meeting with a child following two earlier communications, when the child travels to meet the offender. It also makes it an offence for an adult over 18 to arrange a meeting with a child under 16, following two earlier communications, if he intends to commit a sexual offence against that child during or after the meeting.

B3.252 Voyeurism

The new offences of 'voyeurism' created by s. 67 of the Act have proved surprisingly problematic. Hamilton [2008] 1 Cr App R 171 (examined in the September 2007 update) demonstrates that voyeuristic conduct may not necessarily amount to voyeurism under s. 67. H used a hidden camera to take 'upskirt' video recordings of women in public. The problem was that H's 'victims' were not engaged in any 'private act' (within the meaning of s. 68(1)) when he pointed his hidden camera up their skirts.

This would not, one might suppose, be a problem where hidden cameras are smuggled into communal showers or changing rooms, but Bassett [2008] EWCA Crim 1174 demonstrates that s. 67 may not necessarily be infringed even then. The male chest, even when exposed in a changing booth, shower, or other private place, is not directly protected by s. 67. Covertly video-recording a man wearing swimming trunks may amount to a s. 67 offence only if he is 'doing a private act'; and he cannot be said to be doing a private act merely because he is bare-chested in a public changing room, shower or sauna. In contrast, a woman's breasts are protected in such a place, even if covered by underwear such as a vest or bra (but not if covered by a bikini top or exposed in a public place).

Another issue raised in Bassett concerns the 'expectation of privacy'. Public changing rooms and showers do not provide total privacy. Under what circumstances might one user of such facilities commit an offence in respect of another? The court's view was that:

...[users] must expect to be observed unclothed, for some at least of the time, by other people who are also using the changing rooms. ... No offence ... is committed if that kind of observation takes place, even if the observer derives sexual gratification from what he or she sees. There is ... no reasonable expectation of privacy from casual observation by other changing room users. ...This does not mean that those in the showers do not have a reasonable expectation of privacy from being spied upon by someone outside who has drilled a hole in the wall for the purpose.
... In many cases the question of whether there is or is not a reasonable expectation of privacy will be closely related to the nature of the observing ... It is the nature of the observation rather than the purpose of the observation which may be relevant to the expectation of privacy ... The presence of sexual gratification in the observer does not ipso facto mean that the observation is one from which there is a reasonable expectation of privacy.

It cannot, in other words, be a crime for D merely to gain sexual pleasure from the casual sight of other naked or half naked persons using such facilities; but if D deliberately lurks or lingers for the purpose of observing other users without their consent he may surely cross the borderline into criminal voyeurism, assuming those he observes are doing 'private acts' within the meaning of s. 68. In such a case, D's purpose would affect the very nature of his observation.

B3.268 Territorial and Extra-territorial Jurisdiction

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586) brings s. 72 of that Act into force on 14 July. Section 55 substitutes the Sexual Offences Act 2003, s. 72. This differs from the original provision in two main respects. The first is that it is no longer confined to offences against children below the age of 16. In respect of non-consensual offences, such as rape, or offences involving child prostitution or breach of trust, the new limit is now set at 18. It also deprives UK nationals (as defined in s 72(9)) of any defence based on lack of double criminality. A UK national who engages in consensual sexual activity with a boy or girl of 15 abroad may thus incur criminal liability in England, even if he does not live in the UK and even if the child's consent is fully valid under local law.

B10 Terrorism, Piracy and Hijacking

B10.71 Collection of Information

In K [2008] EWCA Crim 185 (see the March 2008 update) it was held that a document or record falls within the scope of the Terrorism Act 2000, s. 58, only if it is of a kind that is likely to provide practical assistance to a person committing or preparing an act of terrorism. K was applied in Malik [2008] EWCA Crim 1450, [2008] All ER (D) 201 (Jun): the 'lyrical terrorist' case.

B10.82 Investigatory Powers under the Terrorism Act 2000

The Terrorism Act 2000, sch. 5, para. 6, was examined by the Divisional Court in R (Malik) v Crown Court at Manchester [2008] EWHC 1362 (Admin). The claimant in this case was a journalist who was writing, in collaboration with Hassan Butt, a book about Butt's (alleged) previous involvement in Al-Qaeda. The Chief Constable of Manchester Police applied to the Crown Court for a production order in respect of specified journalistic material under sch. 5 to the Act. By para. 6 of sch. 5, a judge may grant such an application only if satisfied of certain matters, including the 'access conditions' specified in para. 6(2) and (3).

As to the first of the two access conditions, the court applied Central Criminal Court, ex parte Bright [2001] 2 All ER 244 (decided under the analogous provisions of the Police and Criminal Evidence Act 1984, sch. 1, para. 4 (see Blackstone's Criminal Practice 2008, D1.87). As to the second access condition, Dyson LJ said:

We do not need to determine the scope of the second access condition, because it is clear that all relevant considerations (including Convention issues and the importance of the need to protect confidential journalist sources) must be taken into account when the court exercises its discretion under paragraph 6 of schedule 5. Since all the arguments advanced [by counsel] in criticism of the judge's decision that the second access condition was satisfied are deployed by him in his criticism of the judge's exercise of the discretion, we need say no more about the second access condition. On any view, there is a considerable overlap between the second access condition and the factors which are relevant to the exercise of the discretion.

A question also arose as to the alleged infringement of the claimant's rights under the ECHR, Article 10. The court said of this:

It is obvious that there is a powerful public interest in protecting society from terrorism and, to that end, enabling the police to conduct effective investigations into terrorism. That interest is promoted by the provisions of the 2000 Act. Article 10(2) of the Convention itself asserts that the right to receive information without interference by public authority may be subject to such restrictions as are prescribed by law and are necessary in a democratic society inter alia 'in the interests of security'. Paragraph 6 of schedule 5 contains carefully drafted provisions which strike a balance between the object of enabling the police to conduct terrorist investigations effectively and respect for a journalist's article 10 rights. To the extent that there is a conflict between that object and respect for a journalist's rights, the court is required to weigh the competing considerations and make a judgment. That process is familiar to any court that is required to balance competing considerations.

In our view, it is relevant to the balancing exercise to have in mind the gravity of the activities that are the subject of the investigation, the benefit likely to accrue to the investigation and the weight to be accorded to the need to protect the sources. In the present case, the investigations into the activities of Hassan Butt include allegations that he was an active member of Al Qaeda and that he participated in some way in the murder of 11 people in Pakistan.

B11 Offences Affecting Public Order

B11.118 Bomb Hoaxes: Sentencing Guidelines

In Philipson [2008] EWCA Crim 1019, a feeble bomb hoax was practised (but almost immediately detected) by a 22-year-old man of previous good character. He had mental health problems, and suffered from emotional immaturity, hostility and learning difficulties, together with poor problem solving skills. He had symptoms of traumatic stress disorder, with a tendency to disassociate from reality. He pleaded guilty at the first opportunity. A sentence of 16 months' imprisonment was reduced on appeal to six months, but the court warned that the public and the emergency services required protection from those who may be tempted to practise bomb hoaxes. Deterrence is of critical importance. Rarely, if ever, will a bomb hoax result in anything less than a custodial sentence, regardless of personal mitigation.

B22 Offences Relating to the Proceeds of Criminal Conduct

B22.3 Money Laundering and Criminal Property

Director of the Assets Recovery Agency v Green [2005] EWHC Admin 3168, Director of the Assets Recovery Agency v Szepietowski [EWCA] Civ 766, and Prosecution Appeal (No 11 of 2007); NW [2008] EWCA Crim 2 (each noted in the February update) were amongst the numerous authorities considered by the Court of Appeal in Anwoir [2008] EWCA Crim 1354. Reference was also made to Craig [2007] EWCA Crim 2913 and IK [2007] EWCA Crim 491.

NW had appeared to qualify, if not contradict, the statement in Blackstone's Criminal Practice 2008 that, for the purposes of prosecutions for money laundering offences, the 'criminal character' of property in question:

... may in some cases be proved by inference from the way in which the property in question is dealt with, and it is not always necessary to identify the specific underlying offence. If, in other words, money is handled in a manner consistent only with money laundering, it would be open to a court or jury to infer that it must be criminal property because 'no one launders clean money'

Anwoir, however, gives welcome support to that statement. Latham LJ said:

We consider that in the present case the Crown are correct in their submission that there are two ways in which the Crown can prove the property derives from crime: a) by showing that it derives from conduct of a specific kind or kinds and that conduct of that kind or those kinds is unlawful, or b) by evidence of the circumstances in which the property is handled which are such as to give rise to the irresistible inference that it can only be derived from crime. This in our judgment gives proper effect to the decision in Green, and is consistent with the decisions of this court in Gabriel [2007] 2 Cr App R 11, IK [2007] 2 Cr App R 10 and, of course, Craig. We consider that it is also consistent with the approach of this court in El Kurd [2001] Crim LR 234.

Part D Procedure

D1 Powers of Investigation

D1.87 Access to Special Procedure Material

Central Criminal Court, ex parte Bright [2001] 2 All ER 244 was applied in the context of a terrorism investigation in R (Malik) v Crown Court at Manchester [2008] EWHC 1362 (Admin). See B10.82 above.

D1.96 Entry and Search without Warrant after Arrest

Section 18(1) of the Police and Criminal Evidence Act 1984 was considered by the Court of Appeal (civil division) in Khan v Metropolitan Police Commissioner [2008] All ER (D) 27 (Jun). An offender, K, was arrested and gave the respondent's address as his own, with the result that the respondent's premises were searched at 3.00 a.m. An award of damages for trespass to the property was upheld on appeal. The search could not be justified under s. 18, even if the police had reasonably believed it was the right address. There was no justification for reading s. 18 other than in accordance with its plain words; and there was no reference to 'reasonable belief' anywhere in that section; although it appeared in different contexts in ss. 8 and 32 of that Act. The absence of any reasonable belief test in s. 18 could not therefore be accidental.

D3 Courts, Judges and Parties

D3.44 Crown Prosecutors

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586) brings s. 55 of that Act into force on 14 July. Section 55 amends the Prosecution of Offences Act 1985, s. 7A so as to extend the powers of the non-legal staff of the CPS.

D5 Preliminary Proceedings in Magistrates' Courts

D5.25 Trial in Absence of Accused

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586) brings s. 54 of that Act into force on 14 July. Section 54 creates a presumption that, if an accused under the age of 18 fails to attend for trial without good cause, magistrates will try him in his absence.

D7 Bail

D7.5 Principles Governing Bail

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586) brings s. 52 of and sch. 12 to that Act into force on 14 July. Section 52 and sch. 12 amend the Bail Act 1976 so as to restrict the grounds on which a person charged with an imprisonable summary offence or a relevant low-level criminal damage offence may be refused bail.

D11 The Indictment

D11.56 Joinder of Counts in Indictment: Charges Founded on the Same Facts

Barrell (1979) 69 Cr App R 250, Bird [1995] Crim LR 745 and the Indictments Rules 1971, r. 9 (replicated in the CrimPR, r. 14.2(3)) were considered by the Court of Appeal in Roberts [2008] EWCA Crim 1304.

Police searched D's home and found (1) 15.5g of cocaine and 58.5g of cannabis in the kitchen; together with (2) two guns and a cannabis bush in the bedroom. He was charged with possessing a Class C drug with intent to supply, possessing a Class A drug with intent to supply and two counts of possessing a firearm when prohibited, contrary to the Firearms Act 1968, s. 21. The court held that he charges were properly joined in a single indictment.

Latham LJ noted that there is a difference between the test in r. 9 (or CrimPR, r. 14.2(3)) and the test in the Criminal Justice Act 1988, s. 40, governing the addition of counts for summary offences. He said:

For the purposes of rule 9, charges can only be joined if they are 'founded on the same facts', whereas the test in section 40 is whether the offences are 'founded on the same facts or evidence'. It is submitted to us, and we consider rightly, that the two tests are not identical. It is unclear what the purpose of the distinction may be; but distinction there clearly is.

But this did not prevent the counts being properly joined on the present facts, nor did it matter that according to D the various contraband items were left at his home at different times by different persons and without his knowledge:

For the purposes of the present case, the facts upon which each of the counts was based was the finding in the one premises at the same time of the drugs and the firearms. In our judgment, that equates to the position in the case of Bird. It falls into the category of case where the factual connection is established by the coincidence of time and place, in other words it meets the concept of being 'virtually contemporaneous' which is one of the categories which the court recognised clearly fell within rule 9 in Barrell.

The counts on the indictment all alleged offences of being in illicit possession of prohibited items. These were continuing offences. As it turned out, it was to be the Appellant's case (but only his case) that different people, who had access to his premises, had secreted these items in the wardrobe without his knowledge on earlier and separate occasions. If it had been his case that he came into possession of all the items in the same way and on the same occasion, there could have been no argument that the counts were improperly joined. The question whether counts have been properly joined cannot, in our judgment, depend upon the explanation given by the defendant. It is not for the Crown to try and predict what the defence is likely to be at the time that the indictment is drawn. The propriety of the indictment must be judged when it is drawn.

It follows that, for the reasons we have set out, the counts were properly joined, so long as it was just and convenient for them to be tried together. It clearly was, and there has been no argument to the contrary. We therefore dismiss the appeal.

D14 Trial on Indictment: General Matters and Pre trial Procedure

D14.118 Witness Anonymity

In Davies [2008] UKHL 36 the House of Lords called into question the increasingly common practice of granting anonymity to prosecution witnesses in cases where there may otherwise be fears for their safety. Their lordships did not go so far as to rule that the practice is inevitably unfair or unlawful. On the contrary, it was recognised that in cases of clear necessity some departures from the principle of open justice are permissible; but it was held that where extensive anonymity is granted a conviction based 'solely or to a decisive extent upon the statements and testimony of anonymous witnesses' is likely to be inconsistent with the accused's right to a fair trial under the ECHR, Article 6.

The Government clearly did not agree with this ruling, and legislation was enacted almost immediately in order to minimise its impact by putting the power to grant anonymity orders onto a statutory footing. It does not, however, affect common-law rules dealing with public interest immunity.

The Criminal Evidence (Witness Anonymity) Act 2008, which came fully into force immediately upon Royal Assent on 21 July 2008, is an emergency measure which the Government has promised to replace with new and more carefully considered legislation in the next Parliamentary session. It will expire on 31 December 2009 unless extended (s. 14). In essence:

Section 1 of the Act introduces the concept of a 'witness anonymity order'.
Section 2 lists the kinds of measures the court may order to secure the anonymity of a witness.
Section 3 sets out who may apply for a witness anonymity order. Both prosecution and defence may apply.
Section 4 sets out the three conditions for making an order, each of which must be satisfied in all cases. These are:

the order must be necessary either for the safety of the witness or for the prevention of real harm to the public interest;
the making of the order must be compliant with the ECHR, Article 6; and
the order must in the interests of justice, which requires the court to have regard inter alia to the interests of witnesses and to the public interest in bringing criminals to justice.

Section 5 sets out the considerations to which the court must have regard when deciding whether the conditions set out in s. 4 are met. These include the accused's general right to test the evidence of a witness against him and challenge the witness's credibility and honesty. The court must consider whether alternatives to anonymity may be available.
Section 6 enables a court to discharge or vary such an order.
Section 7 deals with warnings to juries.
Section 8 makes special provision for service courts.
Section 9 identifies the proceedings to which ss. 1 to 8 apply. These are any criminal proceedings that begin on or after 21 July or which have already begun, but not concluded, by that date.
Section 10 contains transitional provisions concerning pre-commencement anonymity orders and s. 11 provides for appeals where the conviction took place before commencement. Appeals from pre-commencement convictions will not succeed merely because the use of anonymous witnesses would have fallen foul of the Davies ruling at common law. Instead, appellate courts will be required to consider whether the order could have been made under the new law. Convictions must be quashed only if the appellant appears not have had a fair trial.

D15 Trial on Indictment: The Prosecution Case

D15.51 Submission of No Case to Answer

In Prosecution Appeal (No. 32 of 2007); N Ltd [2008] EWCA Crim 1223 the Court of Appeal held that a judge has no power to direct an acquittal on the basis of 'no case' (as opposed to dismissing the charge under the Crime and Disorder Act, s. 51) prior to the conclusion of the prosecution case.

Hughes LJ said:

26 There is sound reason for the jurisdiction to entertain a submission that there is no case to answer to be exercised at the close of the Crown case. It is then that it is known for certain what the evidence actually is. Until then, the most that can be known is what it is expected to be. In the present case, whilst it was known what the witness statements said, it could not be known exactly how the evidence would come out. ...

27 That does not mean that it may not sometimes be appropriate and convenient for the parties to agree to ask the judge to rule as a matter of law whether on agreed or admitted facts the offence charged is made out. A simple practical example is the situation where the end of the Crown case is nigh, subject only to outstanding evidence which it can be known will take a particular form, for example the police interviews. It may be administratively convenient for the parties to ask, or for the judge to suggest, that an expected submission of no case be made then rather than half a day later, perhaps so that the jury is not unnecessarily inconvenienced. The key point is that the outstanding evidence is known for certain; it is admitted or agreed what it will be. And although the argument may be taken at that point, and a ruling made, any direction to the jury to return a verdict of 'not guilty' ought ordinarily to await the end of the Crown case, unless of course the Crown bows to the ruling and offers no further evidence, as it might. Similarly, it may often happen that in advance of the calling of any evidence at all the parties may agree that it would be helpful for the judge to rule upon the question whether, on agreed, admitted or assumed facts, the offence charged would be made out. That may well be done with a view to the Crown accepting that it may offer no evidence if the ruling is against it, just as it may be done with a view to a defendant considering whether to plead guilty if the ruling is otherwise. The difference from the power here claimed is that the judge is invited to proceed upon established, or assumed and agreed, facts, and has no power to compel acquittal until the end of the Crown evidence. Under the new rules for interlocutory Crown appeals under section 58 of the Criminal Justice Act 2003, such a course might also be taken by the Crown in the knowledge that it could decide to appeal an adverse ruling if willing to give the acquittal agreement pursuant to section 58(8) and accept acquittal if it fails.

28. Nor do we in the least discourage beneficial active case management by the Judge, which may, in some cases, include judiciously expressed views designed to encourage, within proper limits, a course of action by one side or the other, just as it may include directions as to the manner in which evidence will be given. We have no doubt that it is open to the judge, in a proper case, to suggest to the parties that he be invited to rule on agreed or admitted facts in the manner set out in paragraph 27. Providing that the judge is scrupulous to avoid descent into the arena and any claim to control of either side's case, such case management is desirable and necessary in pursuit of the overriding objective set out in the Criminal Procedure Rules. We are confident that judges have sufficient powers to avoid, without the jurisdiction now in question, the spectre - of courts routinely being obliged to listen to weeks of unnecessary evidence when the outcome is a foregone conclusion.

D15.81 Appeals by the Prosecution against Adverse Rulings: Conduct of the Court of Appeal

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586) brings s. 44 of that Act into force on 14 July. Section 44 alters the test for ordering a retrial in England and Wales (or that the trial should resume) where the Court of Appeal allow a prosecution appeal against a terminating ruling so as to prohibit the acquittal of the accused unless he could not receive a fair trial on the resumption of proceedings or in a fresh trial.

D19 Trial on Indictment: Sentencing Procedure

D19.66 Pre-sentence Report

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586 ) brings s. 12 of that Act into force on 14 July. Section 12 amends s. 158 of the Criminal Justice Act 2003 so as to allow for oral pre-sentence reports in certain circumstances.

D19.93 Variation of Sentence

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586) brings s. 47 of and sch. 8 to that Act into force on 14 July. Schedule 8, para. 28 amends the Powers of Criminal Courts (Sentencing) Act 2000, s. 155 so as to increase the time-limit for variation to 56 days from the original sentence.

D21 Summary Trial: the Course of the Trial

D21.9 Trial in the Absence of the Accused

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586) brings s. 54 of that Act into force on 14 July. Section 54 amends the Magistrates' Courts Act 1980, s. 11, and creates a presumption that, if an accused under the age of 18 fails to attend for trial without good cause, magistrates will try him in his absence.

D24 Anti-social Behaviour Orders

D24.11 ASBOs Following Conviction

In Edwards [2008] EWCA Crim 1172, aged 46, was convicted on eight counts of breaching a restraining order. The order had been imposed a few months previously following many years of outrageous criminal harassment against her neighbour. Injunctions and probation orders had been breached and ignored.

D was sentenced to 15 months' imprisonment. The judge also concluded, pursuant to the Crime and Disorder Act 1998, that D had acted in a manner which had caused harassment, alarm or distress to one or more persons not of the same household as herself and that an ASBO was necessary to protect the victim and his household from further acts by her. He imposed an order which inter alia excluded her from her own property for ten years. He explained that this was because no other order of the courts had succeeded in stopping her criminal conduct.

On appeal, D submitted that the order was unnecessary because of the restraining order which was already in place, and disproportionate because it excluded her from her own home. She argued that it infringed her right to respect for her home, private and family life, pursuant to the ECHR, Article 8.

Her appeal was dismissed. It was clear that an order excluding someone from their own house was very much a last resort; but that last resort had been reached. The original restraining order had been ignored, and the terms of the ASBO were proportionate to the circumstances. The court had the power to vary or discharge the order so that, should circumstances change, there was the power to restore the matter to the court.

D25 Appeal to the Court of Appeal

D25.7 Appeal against Conviction

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586 ) brings s. 47 of and sch. 8 to that Act into force on 14 July. Schedule 8 contains a range of amendments to the Criminal Appeal Act 1968, including amending ss. 1, 11, 12 and 15 of the 1968 Act so as to impose a time-limit on the grant of certificates of appeal.

D25.34 Sentence when Appeal Allowed on Part Only of Indictment

D26 Procedure on Appeal to the Court of Appeal

D26.16 Receipt of Evidence by the Court of Appeal

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586) brings s. 47 of and sch. 8 to that Act into force on 14 July. Schedule 8, para. 10 amends the Criminal Appeal Act 1968, s. 23 so as to widen the powers to receive evidence to cover applications for leave to appeal and to clarify those powers.

D26.24 Applications to a Single Judge

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586) brings s. 47 of and sch. 8 to that Act into force on 14 July. Schedule 8, para. 11 amends the Criminal Appeal Act 1968, s. 31 so as to widen the powers of the single judge.

D27 Reference to the Court of Appeal Following Trial on Indictment

D27.1 Reference by the Criminal Cases Review Commission

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586) brings s. 42 of that Act into force on 14 July. Section 42 inserts a new s. 16C into the Criminal Appeal Act 1968 which applies only in cases where the Court of Appeal is determining an appeal referred to it by the Criminal Cases Review Commission and the only ground for allowing the appeal is that there has been a development in the law since the date of conviction. In such cases it is open to the Court to dismiss the appeal if they would have refused an extension of time in which to seek leave to appeal (had the Court been considering an out of time application by the appellant rather than a reference by the CCRC).

D29 Appeal to the House of Lords, the European Court of Justice and the European Convention on Human Rights

D29.1 Appeal to the House of Lords

This Practice Statement (House of Lords: appearance of counsel) was issued by Lord Bingham of Cornhill on 22 May 2008:

Their Lordships wish to take this opportunity to remind the Bar of a rule which appears to be less well known than it was.

If counsel are instructed to appear before the highest court in the United Kingdom they are expected to be present at and throughout the hearing. This is not simply a courtesy to the court; if counsel (whether leading or junior counsel) are instructed it is to assist the court in the presentation of their clients' case. The House values such assistance. Hearings in the House of Lords ordinarily take precedence over hearings in lower courts. But counsel should not ordinarily accept instructions to appear in the House for a hearing on a fixed date if they already have a commitment which conflicts with the fixed date of the hearing in the House.

Their Lordships of course appreciate that unforeseen circumstances may arise which may make it difficult or embarrassing for counsel to appear in the House as instructed. The proper course then is to write to the presiding Law Lord and seek his or her leave to be absent. Such leave will ordinarily be given if sufficient reason is shown.

When more than one appeal is heard, whether together or in succession, the House is content that those representing a party whose case has been fully presented should withdraw at the next convenient adjournment.

Part E Sentencing

E1 Sentencing: General Provisions

E1.18 Pre-sentence Reports

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586) brings s. 12 of that Act into force on 14 July. Section 12 amends s. 158 of the Criminal Justice Act 2003 so as to allow for oral pre-sentence reports in certain circumstances.

E2 Custodial Sentences

E2.8 Crediting of Periods of Remand in Custody

Norman [2007] 1 Cr App R (S) 509 was considered in Vaughan [2008] EWCA Crim 1613. It was held to be wrong in that case for the judge to deprive the offender of full credit for the 207 days he had spent in custody on remand without fully explaining the circumstances justifying that decision as required by the Criminal Justice Act 2003, s. 240(6), particularly when the apparent reason was that the defendant had not initially admitted his guilt. The judge had given credit only for the 35 days which the offender spent on remand between his guilty plea and sentencing. The Court of Appeal held that this was wrong in principle. An offender loses some of the credit for a guilty plea where it is tendered late. To penalise him again by reducing credit for time spent on remand would involve double counting and is contrary to principle.

E5 Custodial Sentences for Dangerous Offenders

E5.5 Life Sentence or Imprisonment for Public Protection

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586) brings s. 13 of and sch. 5 to that Act into force on 14 July. Section 13 amends s. 225 of the Criminal Justice Act 2003 and changes the criteria for the imposition of a sentence of imprisonment for public protection. Schedule 5 lists offences specified for the purposes of the amended provisions.

E5.6 Detention for Life or Detention for Public Protection

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586) brings s. 14 of that Act into force on 14 July. Section 14 amends s. 226 of the Criminal Justice Act 2003 and changes the criteria for the imposition of a sentence of detention for public protection.

E5.7 Extended Sentence

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586) brings s. 15 of and sch. 5 to that Act into force on 14 July. Section 15 amends s. 227 of the Criminal Justice Act 2003 so as to widen the circumstances in which a court can impose an extended sentence and remove the obligation to impose such a sentence where the specified conditions are met. Schedule 5 lists offences specified for the purposes of the amended provisions.

E5.8 Extended Sentence

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586) brings s. 16 of that Act into force on 14 July. Section 1 amends s. 228 of the Criminal Justice Act 2003 so as to widen the circumstances in which a court can impose an extended sentence and remove the obligation to impose such a sentence where the specified conditions are met.

E5.9 Assessment of Dangerousness

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586) brings s. 17 of that Act into force on 14 July. Section 17 amends s. 229 of the Criminal Justice Act 2003 so as to widen the court's discretion in determining whether an offender poses a significant risk to the public. Section 229(3) and (4) to and schs. 16 and 17 to the 2003 Act are repealed.

E10 Community Order under the Criminal Justice Act 2003

E10.2 Criteria for the Imposition of Community Order

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586) brings ss. 10 and 11(1) of that Act into force on 14 July. Section 10 amends s. 148 of the Criminal Justice Act 2003 so as to make it clear that the existence of a power to pass a community sentence or to impose restrictions on liberty does not create any duty to do so. Section 11(1) inserts a new s. 150A into the 2003 Act (community order available only for offences punishable with imprisonment or for persistent offenders previously fined).

E10.20 Breach of Community Order

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586) brings s. 38 of that Act into force on 14 July. Section 38 empowers a court, when dealing with an offender for breach of a community order which did not originally contain an unpaid work requirement, to impose an unpaid work requirement requiring 20 hours or more such work to be performed.

E17 Fines

E17.7 Enforcement of Fines

The Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586) brings s. 40 of that Act into force on 14 July. Section 40 amends s. 300 of the Criminal Justice Act 2003 to provide for an attendance centre requirement to be imposed on fine defaulters aged under 25.

E21 Confiscation Orders

E21.21 Effect of Claim by Victim

In Morgan, Bygrave [2008] EWCA Crim 1323, the Court of Appeal considered the effect on a potential confiscation order of an offender paying or offering to pay compensation to his victim[s] without waiting to be sued for it in civil proceedings. Morgan concerned the position in cases still governed by the Criminal Justice Act 1988; Bygrave concerned the position where the Proceeds of Crime Act 2002 applies. The problem is that neither piece of legislation appears to make any allowance for such payment. As Hughes LJ explained (at [15] to [16]):

If the defendant waits to be sued by the victim and the victim sues or indicates an intention to do so, section 71(1C) CJA 1988, or section 6(6) POCA 2002 as the case may be, creates a discretion in the court whether to make a confiscation order or not. It does not follow that the court will not make a confiscation order. At least if there appear to be benefits obtained from criminal conduct which go beyond the loss caused to the suing loser, it ought ordinarily to make an order. There may be other reasons why an order should be made in a particular case. But it would not necessarily be improper, if there were no benefit to the offender beyond the loss which will be recovered by civil action, for the judge to decline to make a confiscation order. And if an order is made in such a case, the Judge is not bound to make it for the full amount of benefit obtained, up to the defendant's realisable assets, but instead can make it for such sum as he thinks fit or just: see section 71(1C)(c) or section 7(3) POCA 2002, as the case may be. Thus the order can be made for the amount of any excess benefit obtained by the defendant beyond that which is being removed by the loser's civil action, or by a compensation order made to relieve the loser from having to go through with that civil action. In that way the defendant can be made to disgorge all criminal benefit obtained, up to the amount of his assets, but need not be required to pay more than he has obtained.

If, however, instead of waiting to be sued, the defendant repays the loser before he comes to court, or indicates that he stands ready to repay immediately, there will probably be no actual or intended civil action by the loser. In that event, section 71(1C) CJA 1988, or section 6(6) POCA 2002, will not apply. That will mean two things. First, the making of a confiscation order is mandatory once the Crown asks for it. Second, the order which must be made can only be for the full sum of benefit obtained, up to the amount of the defendant's realisable/available assets. If the only benefit the defendant has obtained is the amount which he has repaid to the loser, this has the inevitable consequence that there must be a confiscation orders for the same sum again, so long as the defendant has assets to meet it. That means he pays up to double the benefit he has obtained from crime. And if there is excess benefit obtained beyond the sum due to the identified loser, there is no power in the court to tailor the confiscation order to that excess; rather the order must be for the whole benefit obtained.

The court accepted that the law was indeed anomalous in this respect, and that it would be wrong to discourage offenders from making prompt and full restitution to their victims (see also Farquhar [2008] EWCA Crim 806) but held that injustice could be avoided without doing violence to the terms of the legislation.

There is an individual decision to be made by the Crown in each case whether to ask the court to apply the confiscation process. Similarly, it is open to the Crown to discontinue the confiscation proceedings at any stage.

The court retains the jurisdiction to stay an application for confiscation, as any other criminal process, where it amounts to an abuse of the court's process. In the present context, that power exists where it would be oppressive to seek confiscation. See Mahmood [2005] EWCA Crim 2168; Hockey [2007] EWCA Crim 1577.

This may be appropriate where demonstrably (i) the defendant's crimes are limited to offences causing loss to one or more identifiable loser(s), (ii) his benefit is limited to those crimes, (iii) the loser has neither brought nor intends any civil proceedings to recover the loss, but (iv) the defendant either has repaid the loser, or stands ready willing and able immediately to repay him, the full amount of the loss. It does not follow that a confiscation order is always unfair or oppressive just because it may result in the offender paying out more than his actual profit or share of the profit.

In cases where no payment has yet been made, justice may best be achieved by making a confiscation order coupled with an order under the Proceeds of Crime act 2000, s. 13(6) for the offender's victims to be paid their compensation out of that order. In Bygrave that was the solution adopted by the Court of Appeal.

E21.23 Tainted Gifts; and

E21.24 Family Home

Customs and Excise Commissioners v A [2003] Fam 55; [2002] EWCA Civ 1039 and CPS v Richards [2006] 2 FLR 1220; [2006] EWCA Civ 849 were considered by the Court of Appeal (civil division) in Gibson v Revenue and Customs Prosecution Office [2008] EWCA Civ 645.

This case concerned the position of the wife of a convicted offender who had contributed to the purchase of the matrimonial home, which was placed in joint names, but became aware that her husband's wealth was in large part derived from criminal activity. The Revenue and Customs conceded (in effect) that it was only after the initial purchase that she agreed to use the proceeds of crime to pay the mortgage instalments, but argued that on the basis of that knowledge the home (including her interest in it) could be included within her husband's assets available for confiscation. Her interest could not however be treated as a gift, because she had 'provided consideration by bringing up the children and looking after the home'.

It was argued that Customs and Excise Commissioners v A and CPS v Richards provided authority to support confiscation, but the court disagreed. May LJ said:

Those cases concerned a husband's assets which were the subject of confiscation proceedings. The wife was seeking a discretionary order in her favour to transfer the assets to her. The court declined to exercise the discretion in her favour because the assets were tainted and she was complicit. In the present case, Mrs Gibson applies for no transfer in her favour and no exercise of the Court's discretion. The assets are hers without any court order in her favour. It is the prosecution who have to establish a public policy jurisdiction entitling the court to confiscate her assets, when she was not convicted; when no confiscation order has been made against her under the 1994 Act or otherwise; and when there is no statutory confiscatory provision in the 1994 Act or otherwise on which the prosecution can rely. The prosecution need to persuade the court that there is some free standing public policy jurisdiction to support their case.

No such public policy jurisdiction was identified. The appellant was entitled to her joint share of the property; and also to her share of joint bank accounts and endowment policies. As May LJ explained:

Declining to order the transfer to a complicit spouse of property which is not hers is one thing; confiscating property which she already owns is quite another.

Part F EVIDENCE

F3 Burden and Standard of Proof

F3.37 Standard of Proof

Re B (Children) [2008] UKHL 35 was a case concerning care orders in family proceedings, but contains interesting observations on burdens and standards of proof, and particularly on the nature of the civil or 'balance of probabilities' test. The House of Lords rejects the concept of an 'enhanced civil burden' that varies according to the gravity of the issue involved. There are in other words only two standards of proof; but their lordships accept that in some civil proceedings (e.g., ASBO applications under the Crime and Disorder Act 1998, s. 1) the criminal standard of proof must be applied: see R (McCann) v Crown Court at Manchester [2003] 1 AC 787.

F9 Public Policy and Privilege

F9.27 Privilege against Self-incrimination

C plc v P [2007] EWCA Civ 493, [2007] 3 WLR 437 was considered by the Divisional Court in R (Malik) v Crown Court at Manchester [2008] EWHC 1362 (Admin) (see B10.82 above) where a question arose as to whether the privilege against self-incrimination is a right which can be invoked in relation to pre-existing documents. Dyson LJ observed that:

The most recent decision of our courts is C plc v P. It seems to us that the ratio of the decision of the majority of the Court of Appeal was that no privilege against self-incrimination exists in relation to pre-existing documents: see [36] to [38] in the judgment of Longmore LJ (with whom Sir Martin Nourse agreed).

The court nevertheless had reservations as to the ruling in C plc v P. The House of Lords has given leave to appeal against that ruling, in which Central Criminal Court, ex parte Bright [2001] 2 All ER 244 was not cited or considered. Dyson LJ added:

We were referred to a number of decisions of the ECtHR on the subject of the privilege against self-incrimination and pre-existing documents. These included: Funke v France (1993) 16 EHRR 297, Saunders v UK (1997) 23 EHRR 313, JB v Switzerland [2001] Crim LR 748 (Application 31827/96), Heaney & McGuiness v Ireland (2001) 33 EHRR 12, Shannon v UK (2006) 42 EHRR 31, Jalloh v Germany (2007) 44 EHRR 32 and O'Halloran & Francis v UK (Applications 15809/02 and 25624/02). We do not propose to embark on an attempt to analyse these decisions. They are somewhat problematic and we find it difficult to extract from them a clear statement of principle as to whether the privilege against self-incrimination applies to pre-existing documents. We are inclined to accept the submission of [counsel] that they seem to indicate that the privilege against self-incrimination protected by article 6 is in play even where the potential for self-incrimination derives from pre-existing documents.

In view of the uncertain state of the law, it seems to us that the preferred approach for a circuit judge to adopt, at any rate until the House of Lords has resolved the appeal in C plc v P is, like the majority in ex parte Bright, to treat the privilege against self-incrimination as an important relevant factor to be taken into account when exercising the discretion in respect of pre-existing documents. We should add that the automatic and absolute application of the privilege against self-incrimination in all cases where an application is made for a production order under schedule 5 would substantially weaken the schedule in relation to journalist material and that cannot have been what Parliament intended when enacting the provision.

F9.28 Production Orders

Central Criminal Court, ex parte Bright [2001] 2 All ER 244 was considered in R (Malik) v Crown Court at Manchester [2008] EWHC 1362 (Admin). See F9.27 and B10.82 above.

F12 Evidence of Bad Character of Accused

F12.1 Bad Character

In Hussain [2008] EWCA Crim 1117, the Court of Appeal drew a distinction between true evidence of bad character (i.e. evidence of, or of a disposition towards, misconduct) on the one hand, and evidence of what an accused may (perhaps wrongly) have believed as to the character of a co-defendant or some other person.

H and M were jointly charged with robbery. H claimed that he acted under duress and was afraid of H because (inter alia) H was once charged with murder, albeit that he was ultimately convicted only of assaulting the victim, occasioning actual bodily harm. The judge refused to admit evidence of the murder charge on the basis that there was no evidence that M was guilty of that offence. But on appeal the evidence was held to be admissible for a different purpose. Hughes LJ said:

13. . . . The Recorder was plainly right to say that a mere charge, unproved, could not be evidence of bad character, still less could it be bad character itself. Bad character evidence is evidence of something bad done by the person in question in the past. . . .

Note that it is the misconduct which is bad character. Evidence is simply the means by which the misconduct is proved. It is not unusual to see the concept of bad character wrongly elided with that of conviction. It may well be that often they go together, but a conviction is not by itself misconduct. Its status is that it is excellent and very often irrefutable evidence of misconduct. A mere charge unproved cannot begin to be conduct.

14. In this case, in so far as the application was to adduce bad character, that is to say misconduct of Miah, the Recorder was right to say, whichever might be the gateway suggested, that the only available evidence of misconduct was evidence of a conviction for assault occasioning actual bodily harm. That was the only conviction which had resulted. It proved misconduct to that extent and no further. If, however, the Recorder had been asked to admit the evidence of what Hussain believed about Miah, however mistaken it might have been, and together with that to admit evidence that Miah had in the past been tried for murder, on the different basis that this might help to show that there was some foundation for Hussain's asserted belief, then it seems to us, for the reasons which we have already given, that it would have been relevant evidence which ought to have been admitted.

15. Miss Cripps ... is, as it seems to us, correctly unable now to suggest any reason why the evidence if put on that basis could have been excluded. Of course it would no doubt have been followed by a response from either Miah or the Crown or both. It might have been open to either Miah or the Crown or both to adduce evidence which cast doubt upon the veracity of Hussain's belief. As to that we do not know. What we do know is that the evidence which Hussain sought to adduce was admissible, although not within the bad character provisions which was the way that the application was couched.

16. It follows that to that extent, although for reasons which we readily understand, evidence was excluded which ought to have been admitted.

Where evidence is relevant and admissible on behalf of one defendant, it cannot ordinarily be excluded merely because it happens to be unfairly prejudicial to a co-defendant. M could not have been happy for the jury to be told about the murder trial, but that was just his hard luck.

F12.20 CJA 2003: Admissibility under s. 101(1)(d)

The relationship between the Criminal Justice Act 2003, ss. 101(1)(d) and 103, was examined in Colliard [2008] EWCA Crim 1175. The Court of Appeal held that although the matters in issue between the accused and the prosecution may include issues of propensity within the meaning of s. 103, an accused's bad character may tend to prove his guilt in other ways and may then be admissible without regard to s. 103. That must be correct, but whether Colliard provides an illustration is another matter.

D and his co-accused, R, were suspected of drug dealing, and when they got into R's car they were followed by unmarked police cars. When the police attempted to stop R's car, D, who was driving, used the car as a battering ram in order to escape. A quantity of crack cocaine was found near the spot where he and R eventually jumped from the car and fled on foot. Each was carrying around £400 in cash. R claimed the D was the dealer, but D's defence at trial (not disclosed when first questioned) was that he knew nothing about the cocaine and had mistaken the police officers for robbers.

The prosecution applied to prove that in 2002 D had been convicted of drug trafficking after cocaine had been found in the appellant's luggage when he arrived at Heathrow. The application was put on two bases: first, that it was relevant to the issue of whether D knew about the cocaine, and second, that the conviction showed a propensity on his part to commit offences of this kind. That brought s. 103(1)(a) into play. In his ruling the trial judge referred to s 101(1)(d). He held that the previous conviction was relevant to an issue in the case and that the prosecution case was already sufficiently strong for it to be just to admit it. On the issue of propensity, the judge referred to Hanson [2005] 1 WLR 3169 and the need for particular caution where there is only one previous conviction. He then set out the three questions suggested in the decision in Hanson, and answered them in favour of the Crown. Finally, he applied his mind to the Police and Criminal Evidence Act 1984, s. 78, and concluded that admission would not have such and effect upon the fairness of the trial as to require its exclusion.

On appeal D argued that this evidence had been wrongly admitted, but his conviction was upheld. The Court of Appeal held that evidence of D's previous association with cocaine was relevant without necessarily amounting to evidence of propensity. Keene LJ said:

It was critically important to the prosecution case, as we have indicated, that they should establish knowledge on the part of the appellant and consequently possession on his part of these drugs. His plea put that in issue. The prosecution had to rebut therefore a potential defence that the appellant was an innocent passenger in the car, who knew nothing of the drugs at that stage or thereafter. There is ample authority that a previous conviction is relevant to such an issue, not on the basis of propensity but on the footing that it is not credible that it was sheer coincidence that the defendant was in a car in which drugs were being carried ... It is, in our view, simply an illustration of the principle that evidence is admissible, if it is relevant to rebutting a defence or potential defence of innocent association, subject always of course to the question of fairness. On that basis, such evidence can come in under section 101(1)(d), without getting to the stage of the issue of propensity under section 103. The judge therefore was entitled to rule that this evidence was admissible on this basis.

The court was in any case prepared to accept that the conviction could reasonably be found to demonstrate propensity 'within the terms of s. 103(1)(a)'.

D's claim that he knew nothing about the drugs in the car, was implausible at best, and became even less plausible once his previous conviction was disclosed. But why did the previous conviction make the defence more implausible? The court suggests that it did so for two distinct reasons, namely (1) because it tended (on the basis of 'incredible coincidence') to rebut the defence of 'innocent association'; and (2) because it tended to demonstrate a propensity to deal in cocaine. It may be argued, however, that the two reasons are not distinct at all - both are based on propensity or disposition.

At common law, judges attempted for many years to argue that similar fact evidence was admissible only if it tended to prove guilt without resort to the 'forbidden chain of reasoning', namely inferring guilt from evidence of disposition. But as Leonard (now Lord) Hoffman demonstrated in his seminal article, 'Similar Facts after Boardman' (1975) 91 LQR 193, this was nonsense, because almost all similar fact cases ultimately involved such reasoning.

Cases can arise in which D's previous convictions tend to destroy his defence for reasons that have nothing to do with propensity. An example is Attorney-General of Hong Kong v Siu Yuk-shing [1989] 1 WLR 236, in which D was charged with membership of an illegal Triad society and with possession of proscribed Triad paraphernalia. D's previous convictions in that case were relevant because they showed he knew more about the Triads and their rituals than he admitted. But Colliard was not such a case. It was a case where the jury were invited to believe that D was a drug dealer who was up to his old tricks again, rather than an innocent man who found himself in the wrong place at the wrong time. That is an argument based on disposition or propensity.

F14 Evidence of Bad Character of Person other than Accused

F14.7 Evidence of Substantial Probative Value in Relation to Matter in Issue

Campbell [2007] EWCA Crim 1472 (discussed in the October 2007 Bulletin and in Blackstone's Criminal Practice 2007, F12) was applied in the context of the Criminal Justice Act 2003, s. 100, in Kelly [2008] EWCA Crim 1456.

F18 Evidence of Identification

F18.15 Pre-trial Identification Procedures: No Identified Suspect

Smith [2008] EWCA Crim 1342 provides the following guidance as to the procedures that should be followed when police officers purport to recognise suspects from contemporaneous CCTV images of crimes in progress:

There was some controversy as to whether Code D has specific application to the process undertaken in this, as in many other cases, when police officers are asked to view CCTV records in the hope that they might pick out someone of whom they have previous experience. The introduction to the code at D1 provides:-
1.1 This code of practice concerns principal methods used by the police to identify people in connection with the investigation of offences ...(our emphasis)

1.2 Identification by witnesses arises, e.g., if the offender is seen committing the crime and the witness is given an opportunity to identify the suspect in a video identification, identification parade or similar procedure...

A police officer asked to view a CCTV is not in the same shoes as a witness asked to identify someone he has seen committing a crime. But, as the prosecution accepted, safeguards which the code is designed to put in place are equally important in cases where a police officer is asked to see whether he can recognise anyone in a CCTV recording. The mischief is that a police officer may merely assert that he recognised someone without any objective means of testing the accuracy of such an assertion. Whether or not Code D applies, there must be in place some record which assists in gauging the reliability of the assertion. In cases such as these, there is no possibility of comparing the initial observation of a witness, as recorded in a contemporaneous note of description or absence of description, who purports to make a subsequent identification. The police officer can hardly be asked to record his recollection of a description of a particular suspect before he has picked that suspect out from the CCTV recording.

Absent any such check as would be available had a witness described the commission of an offence and recollected his description of the offender, it is important that the police officer's initial reactions to the recording are set out and available for scrutiny. Thus if the police officer fails to recognise anyone on first viewing but does so subsequently those circumstances should be noted. The words that officer uses by way of recognition may also be of importance. If an officer fails to pick anybody else out that also should be recorded, as should any words of doubt. Furthermore, it is necessary that if recognition takes place a record is made of what it is about the image that is said to have triggered the recognition.

Absent any such record, it will not be possible to assess the reliability of the recognition. We were told that a protocol is being prepared for such cases. With the increasing use of CCTV recognition it is vital that a protocol is prepared which provides the safeguard of measuring the recognition against an objective standard of assessment. Only by such means can there be any assurance that the officer is not merely asserting that which he wishes and hopes, however subconsciously, to achieve, namely the recognition of a guilty participant.

NEW legislation

The Criminal Evidence (Witness Anonymity) Act 2008

Section 1 of the Act introduces the concept of a 'witness anonymity order'.
Section 2 lists the kinds of measures the court may order to secure the anonymity of a witness.
Section 3 sets out who may apply for a witness anonymity order. Both prosecution and defence may apply.
Section 4 sets out the three conditions for making an order, each of which must be satisfied in all cases. These are:

the order must be necessary either for the safety of the witness or for the prevention of real harm to the public interest;
the making of the order must be compliant with the ECHR, Article 6; and
the order must in the interests of justice, which requires the court to have regard inter alia to the interests of witnesses and to the public interest in bringing criminals to justice.

Section 5 sets out the considerations to which the court must have regard when deciding whether the conditions set out in section 4 are met. These include the defendant's general right to test the evidence of a witness against him and challenge the witness's credibility and honesty. The court must consider whether alternatives to anonymity may be available.
Section 6 enables a court to discharge or vary such an order.
Section 7 deals with warnings to juries.
Section 8 makes special provision for service courts.
Section 9 identifies the proceedings to which ss. 1 to 8 apply. These are any criminal proceedings that begin on or after 21 July or which have already begun, but not concluded, by that date.
Section 10 contains transitional provisions concerning pre-commencement anonymity orders and section 11 provides for appeals where the conviction took place before commencement. Appeals from pre-commencement convictions will not succeed merely because the use of anonymous witnesses would have fallen foul of the Davies (see D14.118) ruling at common law. Instead, appellate courts will be required to consider whether the order could have been made under the new law. Convictions must be quashed only if the appellant appears not have had a fair trial.

Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional Saving Provisions) Order 2008 (SI 2008 No. 1586)

This Order brings the following provisions of the Act into force:

s. 10 (effect of restriction on imposing community sentences)
s. 11(1) (restriction on power to make a community order)
s. 12 (pre-sentence reports)
s. 13 (sentences of imprisonment for public protection) and sch 5 (offences specified for the purposes of ss. 225(3A) and 227(2A) of the Criminal Justice Act 2003)
s. 14 (sentences of detention for public protection)
s. 15 (extended sentences for certain violent or sexual offences: persons 18 or over)
s. 16 (extended sentences for certain violent or sexual offences: persons under 18)
s. 17 (the assessment of dangerousness)
s. 18 (further amendments relating to sentences for public protection)
s. 20 (consecutive terms)
s. 24 (early release)
s.25 (release on licence under the Criminal Justice Act 2003 of prisoners serving extended sentences)
s. 27 (prisoners liable to removal from the UK)
s. 28 (release of fine defaulters and contemnors)
ss. 29 to 32 (release of prisoners after recall and review), but subject to exceptions
s. 38 (imposition of unpaid work requirement for breach of community order)
s. 40 (attendance centre requirement for fine defaulter)
ss. 42 and 43 (power to dismiss certain appeals following references by the CCRC
ss. 44 and 45 (determination of prosecution appeals
s. 46(1) and (3) (review of sentence on reference by A-G)
s. 47 and sch. 8 (appeals in criminal cases)
s. 52 and sch. 12 (bail for summary offences and certain other offences to be tried summarily)
s. 54 (trial or sentencing in absence of accused in magistrates' courts)
s. 55 (extension of powers of non-legal staff)
s. 56 (provisional grant of right to representation)
s. 57 (disclosure of information to enable assessment of financial eligibility)
s. 58 (Criminal Defence Service: pilot schemes)
s. 59 (SFO's pre-investigation powers in relation to bribery and corruption: foreign officers etc.)
s. 72 (offences committed outside the UK)
s. 73 and sch. 15 (sexual offences: grooming and adoption) to the extent not already in force
s. 76 (reasonable force for purposes of self-defence etc.)
s. 93 to 95 (prisoners and cross-jurisdictional issues)
s. 97 (power to transfer functions under the Crime (International Co-operation) Act 2003 in relation to direct taxation)
s 126(1) and sch. 22 (police misconduct and performance procedures)
s. 141 (sexual offences prevention orders)
s. 142 (notification requirements)
ss. 148(1) and (2) and 149 insofar as they relate to the provisions specified in paragraphs 48, 49 and 50 respectively
connected minor and consequential amendments in sch 26, transitional provisions in sch. 27 and repeals in sch. 28

All the above provisions, bar sch. 26, para. 63, are brought in force on 14 July 2008; sch. 26, para. 63 is in force from 15 July 2008.

Criminal Justice and Immigration Act 2008 (Transitory Provisions) Order 2008 (SI 2008 No. 1587)

This Order makes transitory modifications which are needed until such time as the sentences of detention in a young offender institution and of custody for life for offenders aged at least 18 but under 21 are repealed by the Criminal Justice and Court Services Act 2000, s. 61. It also makes modifications which are needed until such time as the House of Lords becomes the Supreme Court.

Extradition Act 2003 (Amendment to Designations) Order 2008 (SI 2008 No. 1589)

This Order designates the United Arab Emirates as a category 2 territory for the purposes of the Extradition Act 2003.

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